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In Re: Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
Decided On
Case Number Criminal Application No. 449 of 1919
Reported in(1920)22BOMLR368; 58Ind.Cas.915
AppellantIn Re: Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai
.....against contempt.;bex v. parke [1903] 2 k.b. 432 and rex v. dames [1906] 1 k.b. 32, followed.;the district judge of ahmedabad submitted in a letter to the high court for its determination certain questions regarding the conduct of two barristers and three pleaders who had taken satyagraha pledge, i. e., a pledge ' to refuse civilly to obey the bowlatt act and such other laws as a committee to be thereafter appointed may think fit'. the opponents, editor and manager, of a weekly newspaper, published the letter with comments while proceedings against those barristers and pleaders under the disciplinary jurisdiction of the high court were pending:-;(1) that the opponents were guilty of contempt of court in publishing the letter pending the hearing of the proceedings ;;(2) that the comments..........the the letter in this way. for the purposes of the defence to the charge, a copy of the district judge's letter had been supplied by the high court to jivanlal v. desai, one of the counsel in question, he gave a copy to another respondent kalidas j. jhaveri, and the latter handed it to the editor of young india, who is reputed to be the author of the satyagraha pledge. for his conduct in so doing, mr. kalidas j. jhaveri was severely reprimanded by the chief justice and mr. justice heaton on the 10th november 1919: see in re kalidas j. jhaveri (1919) 22 bom. l.r. 31.4. i may now turn to the newspaper itself. on page 1 under the heading 'o'dwyerism in ahmedabad', the district judge's letter to this court is set out in full. on page 2 there is a leading article headed 'shaking civil.....

Marten, J.

1. The respondents Mohandas Karamchand Gandhi and Mahadev Haribhai Desai are the editor and publisher respectively of a newspaper called Young India. They are charged with contempt of Court in publishing in that newspaper, on the 6th August 1919, a letter dated the 22nd April 1919 and written by the District Judge of Ahmedabad (Mr. B. C. Kennedy) to the Registrar of this Court, and also with publishing comments on that letter. The gist of the charge is that the letter in question was a private official letter forming part of certain proceedings then pending in this Court, and that the comments which the respondents made in their newspaper were comments on that pending case.

2. The facts are not in dispute, and may be stated briefly. The case which I have referred to is In re Jivanlal Varajrai Desai (1919) 23 Bom. L.R. 13. It arose under the disciplinary jurisdiction of this Court, in consequence of the above letter from the District Judge, whereby he submitted for the determination of this Court the question of the pleaders of the Ahmedabad Court who had signed what is known as the ' Satyagraha pledge, ' whereby they undertook (amongst other things) ' to refuse civilly to obey these laws (viz. the Eowlatt Act) and such other laws as a committee to be hereafter appointed may think fit.' The learned District Judge also mentioned the names of two barristers who had signed the pledge. The point was whether that pledge was consistent with their duties as advocates and pleaders. The result of that letter was that notices were issued by this Court, on the 12th July 1919, against the advocates and pleaders in question, and it was eventually held, on the 15th October 1919, by a Bench of this Court consisting of my Lord the Chief Justice and Mr. Justice Heaton and Mr. Justice Kajiji that the Satyagraha pledge which these advocates and pleaders had taken was not consistent with the performance of their duties as such to the Court and the public.

3. Meanwhile, viz., on the 6th August 1919, the present respondents had published the letter in question in Young India, and made there the comments complained of. They had obtained the the letter in this way. For the purposes of the defence to the charge, a copy of the District Judge's letter had been supplied by the High Court to Jivanlal V. Desai, one of the counsel in question, He gave a copy to another respondent Kalidas J. Jhaveri, and the latter handed it to the editor of Young India, who is reputed to be the author of the Satyagraha pledge. For his conduct in so doing, Mr. Kalidas J. Jhaveri was severely reprimanded by the Chief Justice and Mr. Justice Heaton on the 10th November 1919: see In re Kalidas J. Jhaveri (1919) 22 Bom. L.R. 31.

4. I may now turn to the newspaper itself. On page 1 under the heading 'O'Dwyerism in Ahmedabad', the District Judge's letter to this Court is set out in full. On page 2 there is a leading article headed 'Shaking Civil Resistors.' We have read the whole of it and I need only refer to some of its -more salient features. At the outset, it mentions an alleged declaration by Sir Michael O'Dwyer of his intention of taking note of the anti-Rowlatt legislation agitation and passive resistance demonstration before there was any disturbance of the peace. It then states that Sir Michael had succeeded to an eminent degree in disturbing the peace in the Punjab, and that 'the O'Dwyrean spirit' had travelled to Burma. Then follows a comment on the local Government there. The article then proceeds to say that an echo of the spirit is heard nearer Bombay, and mentions the above High Court notice to the Ahmedabad lawyers, and that it was prompted by the above letter from the District Judge, and that it remains to be seen what action will be taken by the High Court when the case is argued before it. The article then states that the District Judge has prejudged the issue: that he has made an impudent suggestion which is then quoted: that the adjective 'impudent' is used advisedly: that his imputation would be ungentlemanly in a stranger and is unpardonable in his case. The article then, suggests that the last paragraph of the letter means that the two barristers would be charged and convicted by the Special Bench, and that it was not the fault of the District Judge that they had not been so charged, and that the District Judge had made up his mind that they had committed a criminal breach of the law of the land. Then in the concluding portion, the article states that these traducers of civil resistance and civil resistors are becoming the instruments for propagating Bolshevism, i. e. the spirit of lawlessness accompanied with violence, and that the Government of Burma, the Government of the Punjab and j the District Judge of Ahmedabad, are all in their own way endeavouring forcibly to impose their will upon civil resisters, but that those who are trying to crush the spirit of civil resistance are but fanning the fire of Bolshevism. It will be noticed that this article shews on the face of it that the proceedings were then sub judice, and that it nowhere mentions Mr. Kennedy's name, but refers to him throughout as the District Judge of Ahmedabad.

5. After the proceedings against the pleaders had been disposed of, the editor of Young India was asked, on the 18th October 1919, to give an explanation regarding the publication of the letter and the above comments. Certain correspondence thereupon passed between him and the Registrar of this Court acting under the directions of the Chief Justice. We have read all this correspondence, and I need not repeat it in full. In his letter of the 22nd October, the respondent Gandhi wrote:

In my humble opinion I was within the rights of a journalist in publishing the letter in question and making comments thereon. I believed the letter to be of great public importance and one that called for public criticism.

6. The reply of the 31st October was that this could not be regarded as a satisfactory explanation, but that the Chief Justice was willing to concede that the editor was unaware that he was exceeding the privilege of a journalist, provided he would publish in Young India an apology in the form therewith enclosed. . On the 7th November the respondent Gandhi telegraphed that he was referring the matter to counsel.

7. On the 11th December, the Acting Advocate General initiated the present proceedings by applying for a rule nisi against the respondents. This application was granted by Mr. Justice Shah and Mr. Justice Crump on that day, but the rule itself was not actually issued till the 19th December, and it bears the latter date. Meanwhile, a further letter, dated the 11th December, had been received from the respondent Gandhi. The writer expressed his inability to publish the suggested apology, and stated that in publishing and commenting on the latter, he had performed a useful public duty at a time when there was great tension and when even the judiciary was being affected by the popular prejudice: but that he had had no desire whatsoever to prejudge the issues which their Lordships had had to decide. Then, after referring to the honour of journalism and to his membership of the Bombay Bar and its traditions, the writer stated that in similar circumstances he would not act differently, and that he could not conscientiously offer any apology, and that, if that explanation was not considered sufficient, he would respectfully suffer the penalty Subsequently, at the respondents' request, the hearing of the rule was postponed, and on the 27th February 1920 they made the following statements.-

8. The respondent Gandhi stated:-

With reference to the rule-nisi issued against me I beg to state as follows:-Before the issue of the rule certain correspondence passed between the Registrar of the Honourable Court and myself. On the 11th December I addressed to the Registrar a letter which sufficiently explains my conduct. I, therefore, attach a copy of the same letter. I regret that I have not found it possible to accept the advice given by His Lordship the Chief Justice. Moreover, I have been unable to accept the advice because I do not consider that I have committed either a legal or a moral breach by publishing Mr. Kennedy's letter or by commenting on the contents thereof. I am sure that this Honourable Court would not want me to tender an apology unless it be sincere and express regret for an action which I have held to be the privilege and duty of a journalist. I shall therefore cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of law.

I wish to say, with reference to the notice served on Mr. Mahadeo Desai, the publisher, that he published it simply upon my request and advice.

9. The respondent Desai stated:-

With reference to the rule-nisi served upon me, I beg to state that I have read the statement made by the editor of Young India and associate myself, with the reasoning adopted by him in justification of his action. I shall therefore cheerfully and respectfully abide by any penalty that this Honourable Court may be pleased to inflict on me.

10. At the hearing before us, both the respondents appeared in person. The respondent Gandhi stated (inter alia) that he did not want to go beyond the above statements already made by him : that he would accept any ruling of law laid down by this Court, and that while submitting he had not committed any contempt of Court, he did not want to argue the point. The respondent Desai stated that he associated himself with his co-respondent.

11. As to the general principles of law to be applied to this case, there can, I think, be no doubt. Speaking generally, it is not permissible to publish comments on or extracts from any pending proceedings in this Court, unless the leave of the Court be first obtained. Many good reasons may be advanced for this but the underlying principle is, I think, that of the due administration of justice for the public benefit, one incident of which demands that as a matter of common fairness, both parties shall be heard at the same time and in the presence of each other on proper evidence by an independent and unprejudiced tribunal. That object would be frustrated if newspapers were free to comment on or to make extracts from proceedings which were still sub judice. It matters not whether those comments and j extracts favour prosecutor or accused, plaintiff or defendant. The vice is the interference with what is the Court's duty and not a newspaper's, viz., the decision of the pending case.

12. In Rex v. Parke [1903] 2 K.B. 432 Mr. Justice Wills in delivering the judgment of the Court (the other members of which were Lord Alverstono and Mr. Justice Channell) said at pp. 436-7 as follows:-

The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court in because their tendency and sometimes their object is to deprive the Court of the power of doing that which in the end for which it exists-namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency to reduce the Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned. It is difficult to conceive an after description of such conduct than is conveyed by the expression 'contempt of Court.

13. In Rex v. Davies [1903] 2 K.B. 432, Mr. Justice Wills again delivered the judgment of the Court. At page 40 the learned Judge says:-

What then is the principle which is the root of arid underlies the eases in which persons have been punished for attacks upon Courts and interference with the due execution of their orders 1 It will be found to be, not the purpose of protecting either the Court as a whole or the individual Judges of the Court from a repetition of them, but of protecting the public, and especially those who either voluntarily or by compulsion, are subject to its jurisdiction, from the mischief they will incur if the authority of the tribunal be undermined or impaired.

14. Lower down on the same: page, the learned Judge refers with approval to an undelivered judgment of Wilmot C. J. in 1765 which showed that-

The real offence in the wrong done to the public by weakening the authority and influence of a tribunal which exista for their good alone.

15. So, too, in Helmore v. Smith (1886) 35 Ch. D. 449 Lord Justice Bowen says:-

The object of the discipline enforced by the Court in ease of contempt of Court is not to vindicate the dignity of the Court or the person of the judge but to prevent undue interference with the administration of justice.

16. In Reg. v. Gray [1900] 2 Q.B. 36 Lord Kussell of Killowen, in speaking of one class of contempt, said at p. 40:-

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.

17. Within that class fall comments on pending proceedings, and also I think premature publication of documents. Earlier in the same page, the Lord Chief Justice had dealt with another class of contempt which he thus describes :-

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.

18. Within this class comes the personal scurrilous abuse of a Judge as a Judge, which was the case the Court there had to deal with. It was this class of contempt which Lord Hardwicke characterised in 1742 as 'scandalising a Court or a Judge.' Speaking for myself, I do not think that the expression is a happy one as it is open to misconstruction, and I doubt whether it is much used by modern lawyers. At any rate I personally prefer Lord Russell's own description of this particular class of contempt.

19. It makes no difference, I think, that the alleged abuse here was of a District and not of a High Court Judge. Rex v. Davies [1906] 1 K.B. 32 shews that in England the High -Court has power to protect the Courts of inferior jurisdiction and that in a proper case it should do so. I think the same power exists in India, and that subject to the precautions which Lord Russell mentions on pp. 40 and 41 this Court should extend its protection to all Courts in the mofussil, over which it exercises supervision.

20. As regards the premature publication of documents, the law is thus stated in Oswald on Contempt, 3rd Edn., p. 95:-

Printing, even without comments, and circulating the brief, pleadings, petition, or evidence of one side only, is a contempt.

21. So, too, in Halsbury's Laws of England, Vol.-VII, p. 287, it is stated;--

It is a contempt to publish copies of the pleadings or evidence in a cause, while proceedings are pending.

22. For these propositions, cases beginning from 1754 are cited and they include instances of affidavits, winding-up petitions, and statements .of claim which latter correspond to plaints in this country. One can easily see the evils which would arise if it were permissible to publish a plaint containing (say) charges of fraud against some respectable man before he could even put in his answer, and long before the charges could be judicially determined.

23. I may refer to one more case not because it lays down any new law, but because it brings the English authorities down to date, and illustrates the restrictions imposed there on the liberty of the Press, which, as pointed out by Lord Russell in Reg. v. Gray [1900] 2 Q.B. 36 is in these matters ' no greater and no less than the liberty of every subject of the King.' The case is Rex v. Empire News Limited, and was heard by the Lord Chief Justice of England and Mr. Justice Avory and Mr. Justice Sankey. There the newspaper had commented on a pending murder case, but did not attempt to justify its action in so doing, and the proprietors and editor expressed their deepest regret and contrition to the Court. In delivering judgment, the Earl of Beading said:-

The Court could not permit the investigation of murder to be taken out of the hands of the proper authorities and to be carried on by newspapers. The liberty of the individual even when he was suspected of crime and indeed even more so when he was charged with crime must be protected and it wag the function of that Court to prevent the publication of articles which were likely to cause prejudice. The only doubt in the case was whether the Court ought to commit the editor to prison.

The Court had come to the conclusion that in the circumstances it must mark its sense of the offence committed which was an offence both by the proprietors and editor by imposing a fine of 1000.

24. The principles of law then being clear, how ought they to be applied to the facts of this particular case In my judgment those principles prohibited the publication of the District Judge's letter pending the hearing of the notices issued by the High Court. It was contended by the respondent Gandhi that that letter was written by Mr. Kennedy in his private capacity, and not as District Judge. I think that contention is erroneous. The letter is is official letter written by the District Judge in the exercise of his duties as such, and submitting the case to the High Court for orders. As my brother Hayward has pointed out to me, the letter follows the procedure laid down in the Civil Circulars of this Court in cases of alleged misconduct by a pleader (see p. 259). It very properly sets out what the learned Judge considers to be the facts both for and against the pleaders, and gives his reasons for bringing the matter before the High Court. Indeed if he had not done so, he would presumably have been asked by the High Court for further particulars before they took any action. The letter is on lines quite familiar to this Court in other cases where the Sessions Judge in the exercise of his duties as such brings some matter before this Court with a view to the exercise of its exceptional powers. I may instance criminal references where the Sessions Judge, for the reasons given in his official letter, recommends the revision of some illegal or inadequate sentence which has been passed by a subordinate Court, and which the High Court alone can alter in certain contingencies. If in the present case the District Judge's letter contained any statements which the respondent pleaders or barristers contended were inaccurate, that would be a matter for decision at the hearing of the notices, when all they had to say would be fully considered.

25. But even if the letter was written by Mr. Kennedy in his private capacity, I do not think it would make any substantial difference as regards mere publication. The letter would still form part, and a most important part, of the pending proceedings and the record thereof, and I do not think that any substantial difference can be drawn between it and the other classes of documents mentioned in the authorities cited in Oswald and in Halsbury to which I have already referred.

26. In my judgment, therefore, the publication of this letter was a contempt of Court.

27. That brings me to the comments made in the newspaper, including the heading ' O'Dwyerism in Ahmedabad ' under which the letter was published. These comments are not only comments on pending proceedings, but are of a particularly intemperate and reprehensible character. They prejudge the case and tend to undermine any decision which the High Court may come to at the trial. They also amount, in my opinion, to what Lord Russell describes as 'scurrilous abuse of the Judge as such.' In this latter connection, the question whether the letter was written by Mr. Kennedy in his private or in his judicial capacity becomes material, but as I have already stated it was (in my judgment written in his judicial capacity.

28. Accordingly, on the authorities which I have already referred to, these comments are clearly a contempt of Court and come within both the classes to which Lord Russell refers, and in my judgment they constitute a serious contempt of Court.

29. We have carefully considered the various statements made by the respondents, and invited them at the hearing to give any intelligible explanation or excuse for their conduct. None such was forthcoming. In his letter of the 11th December 1919 the respondent Gandhi contends that in publishing and commenting on the letter he 'performed a useful public duty at a time when there was great tension and when even the judiciary was being affected by the popular prejudice.' Common sense would answer that if that tension and popular prejudice existed, it would be increased rather than diminished by abuse of the local Judge, and that that could not be the public duty of any good citizen.

30. But there would seem to be some strange misconceptions in the minds of the respondents as to the legitimate liberties of a journalist. Otherwise the respondent Gandhi could hardly have contended before us-as he in fact did-that if a son brought a suit against a father, and if a journalist thought that the son's action was wrong, the journalist would be justified in holding the son up to public ridicule in the public press, notwithstanding that the suit was still undecided. I need hardly say that this contention is quite erroneous. It may however be that principles which are quite familiar in England are imperfectly known or understood in India, and that the respondents have paid more attention to the liberty of the press than to the duties which accompany that and every other liberty.

31. This has much weighed with me in considering what order the Court ought to pass in this case. We have large powers and in appropriate cases can commit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right. But just as our powers are large, so ought to. I think, to use them with discretion and with moderation, remembering that the only object we have in view is to enforce the due administration of justice for the public benefit.

32. In the present case, the Court has very seriously considered whether it ought not to impose a substantial fine on one, if not both, of the respondents. But on the whole, I think it sufficient for the Court to state the law in terms which I hope will leave no room for doubt in the future, and to confine our order to severely reprimanding the respondents and cautioning them both as to their future conduct. That accordingly is the order I think we should pass in the present case.

Hayward, J.

33. I concur, A contempt of Court was, in my opinion, committed in the mere publication of the letter of Mr. Kennedy before the trial of the matter by this Court. It might not have been realised but the reason for the rule has been explained by my brother Marten and shown to rest on numerous precedents quoted under para 615 at p. 287 of Vol. VII of Halsbury's Laws of England.

34. A contempt of Court of a more serious nature was, in my opinion, committed in commenting in the particular manner on that letter. It amounted clearly to 'scandalising' Mr. Kennedy as District Judge within the dicta of Lord Hardwicke quoted by Lord Russell in Reg. v. Oraym. It was Mr. Kennedy's duty, according to established practice, to report the matter in question as District Judge for the orders of the High Court. It was in my opinion his duty under the general powers of superintendence vested in him as District Judge under Section 9 of the Bombay Civil Courts Act, 1869, and the duty was moreover expressly prescribed as follows:-

The Judge who notices the misconduct of the pleader should charge the pleader therewith and, after such preliminary enquiry as he may think fit to make, should write to the Registrar requesting him to lay the charge before the Honourable the Chief Justice and Judges, who, if necessary, will call on the pleader for any further explanation he may wish to make. The Judges will then consider the whole matter in Chambers after which the matter will be determined by a Chamber Resolution or, where necessary, by formal proceedings in Court.

by para 14 of Chapter XVIII at p. 259 of the Civil Circulars Manual of the High Court. It has therefore become our duty to protect the proceedings of the District Judge under the powers shown by the precedents of Rex v. Parle [1903] 8 K.B. 432 and Rex v. Davies [1906] 1 K.B. 32 to be vested in us as Judges of the High Court.

35. A contempt of Court of an even more serious nature wag, in nay opinion, further committed in that the comments tended to interfere with a fair trial and to prejudice public justice. They tended to substitute what has been termed a newspaper trial for the regular proceedings before the established tribunal, the High Court. The precedents for the position include those already quoted as well as the later cases of Higgins v. Richards (1913) 88 T.L.R. 202 and Rex v. Empire News Ltd. quoted by brother Marten. The respondents have not denied the facts nor seriously disputed the law. They have expressed their readiness in their replies to submit to whatever punishment might be imposed on them for what they have termed 'the vindication of the majesty of law' by the High Court.

36. It is difficult to appreciate the position taken up by the respondents. They have expressed their inability to apologise formally but have at the same time represented their readiness to submit to any punishment meted out to them. It is probable that the Editor, the respondent Gandhi, did not realize that he was breaking the law and there would be do doubt, if that were so, that it was not realised by his publisher, the respondent Desai. The respondents seem to have posed not as law-breakers but rather as passive resistors of the law. It would, therefore, be sufficient, in my opinion, to enunciate unmistakeably for them the law in these matters, to severely reprimand them for their proceedings and to warn them of the penalties imposable by the High Court.

Kajiji, J.

36. I concur.

37. After Mr. Justice Hayward and Mr. Justice Kajiji delivered their judgments, Mr. Justice Marten said as follows:-

38. The order of the Court will therefore be: 'The Court finds the charges proved, it severely reprimands the respondents and cautions them both as to their future conduct.

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