S. Rangarajan, J.
(1) The respondent (R. S. Ramachandran). Editor of a Weekly called 'Crusader', not only wrote a letter to the Registrar of this Court on 3rd June 1974 but also published the contents of that letter in two issues of his paper, namely, of the 3rd and 12th August, 1974. A notice to show cause why action should not be taken against the respondent under the Contempt of Courts Act, 1971 (hereinafter called 'the Act') in respect of the said letter, dated 3rd June 1974, had been directed to issue by a Division Bench of this Court on 24-7-1974. Rule was not issued in the first instance since the Division Bench could not then make certain whether the impugned letter had in fact been written by the respondent. When he did not deny the letter but admitted it he was heard by the Division Bench which by its order dated 16-5-1975 drew Ins attention to certain specific portions of the letter which prima facieconstituted contempt and thus took cognizance, suo moth, of the alleged criminal contempt.
(2) In the issue dated 12th August 1974 the respondent had said that the copy of his letter dated 3rd June 1974 had been published in the earlier issue of the paper dated 3-8-1974, that though a number of persons had applauded him for it a contempt notice appeared to have been issued to him by the High Court, he did not know whether that letter dated 3rd June 1974 amounted to contempt of court or not, but whatever it was he did not propose to tender any apology. He also added that instead of action being taken against 'the guilty' (against whom he had written), this was what was happening to him; the letter dated 3rd June 1974 was published 'again'.
(3) The respondent had filed a suit (case No. 963/73) as attorney of M/s General Electronicals Corporation in the court of the Sub Judge 1st Class, Delhi for a mandatory injunction; he had a'lso applied for an injunction pending suit under Order 39 rules 1 and 2 of the Code of Civil Procedure. The learned Subordinate Judge, Shri A. K. Srivastava, allegedly made certain observations against the plaintiff and dismissed the application for injunction against which an appeal (No. 451/73) was preferred; it was heard by Shri B. B. Gupta, Senior Sub-Judge. Pending receipt of The records of the lower court (said to be next door) the hearing of the appeal was adjourned from 11-9-1973 to 24-11-1973. The appeal was dismissed on 7-1-1974
(4) In order of chronology, it transpires that the respondent had written even as early as 25th February, 1974 to the Chief Justice and to the Lt. Governor on 19th March 1974 complaining against Shri B. B. Gupta. The Registrar wrote to the respondent on 21-3- 1974 informing him that the Chief Justice had referred his complaints to the Vigilance Committee of this Court and that he might appear before it on 5-4-1974 with affidavits and the material in support and proof of his allegations. The respondent replied, on 23-3-1974, that the Registrar's letter only showed that his complaint was being treated a 'routine affair' 'without any relevance to or urnderstanding of' it; he characterised this as 'inept understanding' for which 'the- judiciary has now become famous.' He had 'no objection' to present the affidavit at the time of hearing. The respondent came out with a further statement that he had 'enough recorded materials against a number of other Judges and Magistrates including the allege d clique between Gupta' and two others whom he had name. He proposed to take up the complaints, which had been 'mercilessly suppressed by the higher authorities', and expose them, if need be, through his Weekly.
(5) On 23rd May 1974 the respondent wrote to the Chief Justice (Shri S. N. Andley) that the Vigilance Committee headed by the Chief Justice heard his arguments and he was informed that he would be informed in writing about the result, but in spite of 40 days elapsing he had heard nothing about it.
(6) The Registrar of this Court informed the respondent by letter dated 28-5-1974, that he (the respondent) had specifically informed the Hon'ble Judges who constituted the Vigilance Committee (the others were T. V. R. Tatachari and V. D. Misra, JJ.) that the respondent was not making any allegations of corruption against the judicial officer concerned and that from the facts and circumstances relied upon by the respondent their Lordships could not infer any malice on the part of the subordinate Judge dealing with the case It was, however, ordered that the matter of adjournments and loss of copies (about which also reference had been made) will be looked into on the administrative side and this was being done.
(7) It is significant that the respondent did not send any reply staling that the said averments in the Registrar's letter were not correct and that he had not made any specific statement such as had been attributed to him. It is only in his affidavit dated 26-5-1975 that he denied, as a fact, that he had not imputed motives or malice lo the learned subordinate Judge despite his having filed some affidavits in this Court earlier. On the country, the averments in the said letter dated 3-6-1974 would themselves seem to in dicate that he could not bring himself to deny it at that stage. The language employed by him in the said letter, which itself seems to be quite revealing, is well worth setting out:
'EVERYone who deserves to be in a position to know, knows that the entire judgment delivered by B. B. Gupta is malicious, mischievous and outrageously wicked. My charges against this man can be easily traced in the affidavit placed before the Vigilance Committee.'
The respondent probably wished to take the stand then that he was one of those who-did not 'deserve to know' with the further implication that if he had known he would not have said so before the Vigilance Committee.
(8) Chief Justice S. N. Andley was to retire on 4th June 1974. The letter dated 3rd June 1974 was addressed by the respondent to the Registrar, referring to his earlier affidavit dated 5th April. 1974, which he had filed before the Vigilance Committee. He had mentioned in it that Shri B. B. Gupta had been 'maliciously and deliberately delaying the disposal of the appeal with a view to granting uncalled for and un-warranted relief to the defendants even before summoning them'; notice had been issued to the respondents in theppeal on 24-10-1973 requiring them to appear on 24-11-1973. The urgency was such that Shri B. B. Gupta had 'to either grant or dismiss the appeal at the outset before hearing the defendants'. It was further complained by him that the appellate Judge failed (or refused) lo consider the written arguments submitted by him the authorities cited by him were not considered but other decisions were relied upon. The appeal was dismissed on 7-1-1974. The appellate Judge 'maliciously or corruptly garbled unfair selections and distorted material facts with a view to finding a judgment, deliberately omitted to give his reasoning as to the issues raised, deliberately failed to take into consideraion the Rulings of higher courts or pointed out and other Rulings by which citations were over-ruled'.
(9) The office put up the letter to the Chief Justice who directed it to be placed before a Division Bench of this Court which directed the issue of a 'show-cause' notice, as noticed already, on 24-7-1974. The respondent and his counsel appeared on 29-8-1974 and took time to file a reply, which was done on 24-9-1974; he wanted time to raise some more points in his reply for which purpose time was granted till 5-10-1974, the case itself was listed on 9-10-1974 when the respondent stated that no other evidence had to be adduced by him: a Division Bench, different from the previous bench, ordered notice to the Standing Counsel, Shri (now Justice) S. S. Chadha, who appeared on 23-11-1974 and took time. Shri S. S. Dalal appeared for the Delhi Administration on 7-1-1975. The respondent wanted, on 7-2- 1975, to file a supplemental reply for which he was given a week's time. This was done by the respondent by filing a supplementary affidavit dated 7-2-1975.
(10) It was seen that when this case came up before a Division Bench (consisting of Jagjit Singh and V. D. Misra, JJ.) on 16-5-1975 the Division Bench drew the attention of the respondent to the follow- ing specific portions of the said letter by an order which is self explanatory :
'......It is rightly said that the present day administrators of justice have converted the judiciary into a slaughter house of justice.
In a leading article published by me in the year 1968, I called on the Law Ministry to 'Hand these judges at the nearest lamp post and burn the posts also, so that they may not contaminate others with their perjury'. Had the Ministry wisely accepted my suggestions, perhaps, the public would not have to point their accusing fingers against the judiciary as a whole today. While having lost their heads, they were found busy hatching, tearing or consigning justice. These Holy men, known as judges, sanctified to subvert the principles of law saw nothing serious when their own tribe committed barbarous acts. Perfidiously, even if some one took the pains lo bring on record the mischief played by a brother judge lo a senior, these superiors would say that they could not infer anything out of the complaint. For them it is an amusement, a morbid pleasure at that. They take pride in doing all these as a matter of routine just the same way as the vultures were feeding on chicken. The pains of the chicken and those of the ordinary men in the street, were never the concern of either the vultures or the judges. The axiom is that what is hunted should be destroyed. It is all a game. I do not say that all the judges of this land are bad. A few may be an exception but when they are in minority and find themselves weak against the organized gangs. Your recent communication of the decision of the so called Vigilance Committee headed by a headless Chief Justice S. N. Andley of the Delhi High Court cannot be worst than this. If ever a prize for fantastical folly or stupidity is to be awarded it should rightly belong to Chief Justice S. N. Andley. He is already known as a HOCUS-POCUS man. (c) Quite a large number of advocates say that he was responsible for most of the corruption and groupism among judicial officers and the enlistment of his 'kith and kin' into judiciary. (d) The public say that the terrible corruption and stupidity shown by judicial officers have a direct bearing with the existence of S. N. Andley as the Chief Justice. Every one who deserves to be in a position to know, knows that the entire judgment delivered by B. B. Gupta is malicious, mischievous and outrageously wicked. My charges against this man can be easily traced in the affidavit placed before the Vigilance Committee. To the perverted and the brainless, major issues were not visible. To protect one criminal, it appears another high class criminal, tried his best to ignore the major issues contained in my complaint and affidavit and ultimately as a compromise ordered an enquiry agains petty issues so that the criminal may escape without any kind of punishment.'
(11) I he defenses of the respondent in this proceeding may be briefly noticed:
(1)There was no publicity of the letter.
(2)S. N. Ainiley C. J. having retired on 4th June 1974 nothing stated in the impugned letter could be regarded as contempt of a retired Judge because the said letter, though dated the 3rd, reached this Court only on the 6th June 1974.
(3)The letter of the 3rd June 1974 was written by the respondent to the Registrar of this Court in his capacity as a member of the Vigilance Committee this was further amplified during the arguments as being due to ignorance, on his part, of the nature and function of the Vigilance Committee.
(4)Only the personal facet was touched; there could not be any contempt action in respect of criticism of what the Judges do in their administrative capacity.
(5)The possibility of Explanationn by the Judge concerned in respect of the impugned matter will render nugatory proceesings for contempt.
(6)There was no personal malice on the part of the respondent; on the other hand, his motivations were to bring about ideal conditions; if there had been any excessive zeal in this respect it ought to be ignored;
(7)In any case, truth is now a justification under the Act (of 1971) whatever may have been the prior position;
(8)the procedure adopted in this case is defective sinee there was no power to issue a second 'motion' on 16-5-1975.
(9)the penal provisions of the Act are hit by Article 19(1) of the Constitution.
(12) It would seem helpful to understand the scheme of the Act and how some of the material provisions, old and new, have been construed by the decisions of the Supreme Court and some of the High Courts in India, in the background of the American and English approaches to this question, before we deal with each and every contention urged before us.
(13) The Preamble to the Act states that this Act is 'to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto'. To what extent the powers have been limited has to be understood only in the light of the provisions of the Act.
(14) For the first time under this Act not only has the procedure for taking action for contempt been laid down but 'contempt of court' has been defined by section 2(a) to mean either ''civil' or 'criminal' contempt. Criminal contempt, with which we are concerned in this case, has been further defined by section 2(c) as follows :
'2(C).'criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(I)scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(II)prejudice, or interferes or tends to interfere with, the due process of any judicial proceeding; or
(III)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.'
(15) Sections 8, 17(5) and 13, which are relevant for this case, may also be read :
'8.Other defenses not affected.--Nothing contained in this Act shall be construed as implying that any other defense which would have been a valid defense in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act.'
'17(5).Any person charged with contempt under section 15 may file an affidavit in support of his defense, and the Court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.'
'13.Contempts not punishable in certain cases.-Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.'
(16) Publications which are made innocently without having reasonable grounds for believing that any judicial proceeding is pending are protected (section 3); similarly protected are fair and accurate reports of judicial proceedings (section 4), fair criticism of judicial acts (section 5) and bona fide complaints made to a higher court concerning the presiding officer of a court (section 6).
(17) Section 14 lays down the procedure where contempt is in the lace of a High Court or the Supreme Court; section 15 lays down how cognizance is to be taken of criminal contempt in other cases: section 17 prescribes the procedure to be followed after taking cognizance. The hearing of criminal contempt is to be only by a Bench of not less than two Judges (section 18). The period of limitation for initiating proceedings for contempt is one year from the date of commission of alleged contempt (section 20). Section 22 specifically provides that the provisions of the Act are in addition to and not in derogation of the provisions of any other law relating to contempt. Power has been given to the Supreme Court and High Courts to make rules relating to procedure which arc not inconsistent with the Act (section 23).
(18) There is a plethora of cases on the subject. We were taken more fully through the latest pronouncement of the Supreme Court In Baradakanta Mishra v. Registrar Orissa High Court : 1974CriLJ631 and also the relevant portions of the judgment of the Orissa High Court in Registrar of the Orissa High Court v. Baradakanta Misra : AIR1973Ori244 where G. K. Misra, C. J., speaking for a bench of five Judges, has made, if we may say so with respect, an exhaustive survey of the decisions both English and Indian. That case related to a senior judicial officer who, during his last years of service was 'gripped by a sort of mania against the High Court which clouded his reason' to such an extent that he made allegations of mala fides, bias, improper motive and prejudice against High Court Judges in his grounds of appeal lo the Governor and his memo of appeal to the Supreme Court. Palekar, J., speaking for himself as well as for A. N. Ray, C. J. and Y. V. Chandrachud, J. laid down clearly that vilificatory criticism of one functioning as a Judge, even in purely administrative or nonadjudicatory matters, amounts to criminal contempt and that there is no warrant for the narrow view that the offence of scandalisation takes place only when the imputation has reference to the adjudicatory functions of a Judge in the seat of justice. All the three subclauses (set out above) of section 2(c) of the Act, it was explained,. deal with contempt in terms of obstruction of or interference with the administration of justice; the courts have multifarious functions to perform, the control which a Judge exercises over his assistants has also the object of maintaining the purity of administration of justice. After this clear pronouncement there could be no scope at all for making any distinction between the judicial and administrative functions performed by a Judge or Judges or the court on behalf of which Judges act.
(19) In his concurring judgment V. R. Krishna lyer, J., speaking lor himself and on behalf of Bhagwati, J' referred, probably to the same areas, in terms of what he described as 'judicial cum parajudicial', and the need to reconcile the claims of free speech with protection to those involved with the administration from being either scandalised or from unjust or mala fide criticism. The American approach in this regard to free speech, discussed by Mathew, J. (as he then was) in his dissenting judgment in Narayan Nambiar v. E. M. Sankaran Namboodripad 1968 K. L. T. 299 (3), did not commend itself to the Supreme Court either in the same case or inBaradakanta Mishra. Mathew, J. had occasion (later to deal with the press, 'standing as the purveyor of truth and the disinterested counsellor of the truth and the disinterested counsellor of the people', being run for profit and the likelihood of profit coming prior io opinion and hence requiring control (dissenting, in Bennet Coleman and Co. v. Union of India : 2SCR757 and summarizing his earlier views in the later case (Kesavanda v. State of Kerala, : AIR1973SC1461 . Any later debate, if there was one on the floor of Parliament at the time when this statute of 1971 was passed (to which Mr. Mehta, learned counsel for the respondent made some reference), had only settled the legislative approach contrary to the American and in favor of balancing the claim of free speech with the duty 'to keep the stream of justice clear and pure' (vide the observations of Lord Chancellor Hardwicke in St. Jame's Evening Post case (1742) 2 Atk. 469-quoted in Oswald's Contempt of Court, 3rd Edn. p. 6), (6).
(20) The object of the law of contempt is to prevent conduct that tends to bring the authority and administration of the law into disrespect or disregard or that which interferes with or prejudice parties litigants or their witnesses during the litigation. That is what the definition of contempt under section 2(c) of the Act sought to achieve, subject, however, to section 13.
(21) Judges today, we believe, are not unduly sensitive to criticism of their work, especially of the kind which is in the true scholastic tradition and offered with a view to improve the health and vitality of the judicial process; they would, on the contrary, be grateful for such criticism; it is important that it should not he mala fide or a scurrilous attack-such as we find emanating from what is described as the cheep or yellow press, which has quite often no other motivation, despite protestations to the contrary, than to sell some more issues and make filthy lucre. The embargo, in this area on free speech, applies even to complaints made through the usual and constitutional channels. Palekar, J., in Baradakanta Mishra (1), pointed out that scandalous allegations against a High Court in a memo of appeal to the Supreme Court would constitute contempt. V. R. Krishna lyer, J. observed as follows in the same case :
'...THEvery conspectus of the statutory provisions and the ethos and raison d'etre of the jurisdiction persuade as to the conclusion that the text of the Act must :take its colour from the general context and confine the contempt power to the judicial-cum-para-judicial areas including those administrative functions as are intimately associated with the exercise of judicial power'.
'INshort, the accent is on the functional personality which is pivotal to securing justice to the people. Purely administrative acts, like recruitments, transfer and posting. routine disciplinary action against subordinate staff, executive acts in running the establishment and ministerial business ancillary to offer-keeping these are common to all departments in the public sector and merely because they relate to the judicial wing of government cannot enjoy a higher immunity from criticism. The quintessence of the contempt power is protection of the public not judicial personnel.'
'IF we accept this slant on judicialisation as a functional limitation on the contempt jurisdiction we must exclude from its ambit interference with purely administratry acts of Courts and non-judicial functions of Judges. This dichotomy is implicit in the decided cases although the twilight of the law blurs the dividing lines now and then. To cast the net wider is unreasonable and unwarranted by precedent. To treat, as the High Court has done, the image and personality of the High Court as an integrated one and to hold that every shadow that darkens it is contempt is to forget life, reason and political progress. For, if a Judge has an integrated personality and his wife openly accuses him of neglect or worse, she would certainly reduce the confidence of the public in him as judge; will her accusation be personalised contempt If a judge expresses on a platform crude views on moral lapses and is severely criticised in public for it, it will undoubtedly debunk him as a judge. Will such censure be branded contempt ?'
(22) To these observations he added the instances of a grocer siting the judge for arrears due to him coupled with at least a suggestion that the denial by the judge of the claim was false or a servant of a judge complaining of misconduct against his master. These were referred to in the context of the statement 'this was. no amulet worn by judges for all purposes'.
(23) Except to draw attention to these aspects in an endeavor lo make the statement of the law fuller and clearer (with the necessary limitations as well) it does not seem to us that any radically different approach was indicated in the concurring judgment. The same passage from Halsbury's Laws of England, para 9 of Vol. Viii, 3rd Edn., quoted by Palekar, J. was also relied upon:
'THEpunishment is inflicted not for the purpose of protecting either the Court as a whole or the individual judges of the Court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court from the mischief they will incur if the authority of the Tribunal is undermined or impaired'.
(24) The earlier portion of this passage from Halsbury quoted by Palekar, J. but not by V. R. Krishna Iyer, J. may also be read :
'SCANDALOUSattacks upon Judges are punished by attashment or committal upon the principle that they are, as against the public, not the Judge, an obstruction to public justice; and a libel on a judge, in order to constitute a contempt to cause such an obstruction...'.
(25) As explained in Oswald's Contempt of Court (p, 91) Iibels on the integrity of the Court, its Judges, officers or proceedings come under the head of scandalising the court (Ex parte Turner (1844) 3 M.D.; De G. 523; (7), Van Sandau v. Turner (1845) 6 Q. B. 773; (8), Onslow's and Whelley's case (1873) L.R. 9 0.3. 219; (9), In re Bahama Islands, (1893) A.C. 138., (10) have been cited in the footnote (y) in support of the above text). It is seen from another passage in the same work (p. 49) that to charge a Judge with injustice is a grievous contempt; to accuse him of corruption might be a worse insult'. The reason for this principle is said to be that an impeachment of the wisdom and goodness in the choice of judges, excites in the minds of the people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them.
(26) V. R. Krishna Iyer, J. summed up (in para 80, page 733 col. 1 as follows :
'WEmay now sum up. Judges and Courts have diverse duties. Bul functionally, historically and jurisprudentially, the value which is dear to the community and the function which deserves to be cordoned off from public molestation, is judicial. Vicious criticism of personal amd administrative acts of judges may indirectly mar their, image and weaken the confidence of the public in the judiciary but the countervailing good, not merely of free speech but also of greater faith generated by exposure to the actinic light of bona fide, even if marginally overzealous, criticism cannot be overlooked. Justice is no cloistered virtue'.
(27) It is needless to be detained by further passages in the juagment of V. R. Krishna lyer, J. (except a few more that may he noticed below) because the learned counsel of the respondent Shri S. N. Mehta, who argued after taking great pains to stu'dy the law on this question, was unable to bring his client's case even within any of the observations of V. R. Krishna lyer, J.
(28) On the question of the distinction attempted between judicial and administrative tasks of a judge (performed qua judge and not qua individual) it seems to us that the law has been uniformly laid down except for three cases noticed by G. K. Misra, C.J.: Rex v. B. S. Nayyar, : AIR1950All549 , State of U.P. v. Shyamaslinder Lal, : AIR1954All308 and K. Damodaran v. Induchoodan, : AIR1961Ker321 . There has been a wrong understanding of what Lord Atkin said in case of Debi Prasad Sharma v. King-Emperor relating to a circular to subordinate judges, falsely attributed to the Chief Justice, asking them to make collections for the war fund. V. R. Krishna Iyer. J. quoted Lord Atkin's observations, which included the statement that a simple denial in public would have allayed the trouble, and hud no difliculty in pointing out as follows: All we would ask is that those who criticise us will remember that, from the nature of our office we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy, we must rely on our conduct itself to be its own vindication.' Palekar, J., referring to Lord Atkin's observations and what was decided in that case explained the ratio of that case in clear terms:
'THEplain implication is that if the circular had been alleged to have been issued by the Chief Justice under the authority of the High Court, then the imputation having the effect of lowering the prestige and the authority of the High Court could conceivably have been regarded as contempt. Their Lordships of the Privy Council are not known to waste their words over matters not relevant to the issue'.
(29) The following decisions of the Supreme Court seem to suggest this view : : 1954CriLJ238 Brahma Prakash Sharma v. : 1970CriLJ1525 In re P. C. Sen (16). : 1970CriLJ1670 -Namboodripad's case, (17) where Hidayatullah, C.J. rested the decision on the ground of scandalising 'weakening the authority of law'. : 1971CriLJ268 Perspective Publications v. State of Maharashtra, (18). : 1972CriLJ620 Gobind Ram v. State of Maharashtra, (19). : 1972CriLJ39 Dinabandhu Sahu v. State of Orissa (20) where the criticism of the. speech of the Chief Justice on the occasion of flag hoisting praising the contribution by the former Chief Minister to the establishing of the Court etc. was held to constitute contempt (there was an apology at the appellate stage).
(30) A similar view was taken by a Division Bench consisting of Alladi Kuppuswami and Sriramulu, JJ. of the Andhra Pradesh High Court in N. Ra)agopala Rao v. Murtuza Mujtahdi 1974 (1) ALT171, (21), Sriramulu, J. observed that any attempt to shake the confidence of the people, when the court has jurisdiction, is to strike at the very root of democracy.
(31) Thomas M. Franck, in his book entitled 'The Structure of Impartiality' (1968 Edn.) analyses the nature of judicial impartiality in juristic as well as philosophical terms. What is important is the belief of the combatants and of the public in the 'subjectivity' of the judge for even with his professional detachment and training it is not possible to avoid 'subjectivity' altogetlher nonetheless, this is not the 'subjectivity' of a litigant. The litigants themselves, in this adversary system, renounce the possibility of their being objectivelyright and enter the arena with only a 'preference for winning' but a 'willingness to lose' and with full faith in the 'subjectivity' of the judge, faith in which not only the litigants themselves but the public also share.
(32) These are the pro-conditions for the success of the judicial process and of the administration of justice. It is in this light that it became necessary to endow the court of justice with the power to enforce obedience to its mandates, to protect its officers or to shield those who arc entrusted to its care; without such protection Courts of Justice would soon lose their hold upon the public respect, and the maintenance of law and order would be rendered impossible (Oswald. page 9). Erie, C.J. explained the' reason for these powers : 'These powers are given to the Judges to keep the course of justice free; powers of great importance to society, for by the exercise of them law and order will prevail; those who are interested in wrong are shown that the law is irresistible. It is this obstruction which is called contempt. and it has nothing to do with the personal feelings of the Judge, and no Judge would allow his personal feelings to have any weight in the matter. According to my experience, the personal feelings of the Judges have never had the slightest influence in the exercise of these powers entrusted to them for the purpose of supporting the dignity of their important office; and, so far as my observation goes, they have been uniformly exercised for the good of the people' (in ex parte Fernandez 1861 30 L.J.C.P. 321 quoted by Oswald on pp 9 and 10). We hold that this statement is as much true today as it was a century ago' when these words were uttered. These seem to be the ideas which Hidayatullah, C. J. expressed so pithily in Namboodripad's case : 1970CriLJ1670 : 'Freedom of speech goes far but not far enough to condone a real case of contempt'.
(33) There has been some discussion in English cases whether scandalising as an offence involving contempt had become 'obsolete Despite such an observation of Lord Morris in McLood v. St. Aubyn 1899 A.C. 549 (22) there was a case .of scandalising before an English court-Queen v. Gray 1900 2 Q.B. 36 (23) within about a year of making such an observation. The above observation was also referred to in Ambard v. Attorneyy General for Trinidad and Tebago 936 A.C. 322 (24); scandalising as a species of contempt was felt necessary to be retained in the Crown Colonies because 'natives' may indulge in it. But even in England scandalising had not become obsolete: this was explained by Hidayatullah, C. J., speaking for the Supreme Court, in Namboodripad v. Narayan : 1970CriLJ1670 ; when he observed that the observations in 1899 A.C. 519 at p. 561 were disproved within a year and that many convictions had taken place in England for scandalising Judges. Grover, J. speaking for the Supreme Court in Perspective Publications v. Suite of Maharashtra A.I.R. 1972 S.C. 222(26) also observed : 'It is not right to say that commitals for scandalising the court have become obsolete'. In an earlier case (Stale of Madhya Pradesh v. Revashankar, : 1959CriLJ251 , S. K. Das, J.. speaking for the Supreme Court, quoted from the observations of Mukherjea J. in a still earlier decision in Brahma Prakash Sharma v. State of U.P. : 1954CriLJ238 (28):
'IT would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputation to which they may be exposed as individual; it is intended to be a protection to the public whose interest would be very much affected if by the act or conduct of and party, the authority of the Court is lowered and the sense of confidence which people have in the administration of justice by it is weakened'.
(34) The limits of criticism, which have now been laid down in the Act, were also stated by S. K. Das, J. in the above case in the following manner when he quoted with approval what Lord Atkin had said in Ambard v. Attorney General for Trinidad and Tohago (1936) A.C. 322 (24) :
'ALLthat we are saying is that the aspersions taken at their face value amounted to what is called scandalising the Court itself, manifesting itself in such an attack on the Magistrate as tended to create distrust in the popular mind and impair the confidence oF the people in the Courts. We are aware that confidence in Courts cannot be created by stifling criticism. 'The path of criticism', said Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago L.R. (1936) A.C. 322 : 'is a public way : the wrong headed are permitted to err therein, provided that members of the public abstain frorn imputing improper motives to those taking part in the administration of justice, they are immune'
(35) This debate is no longer relevant in view of section, 2(c) defining contempt as. including scandalising; this was itself nothing new.
(36) No justification of vilification of judges or the judiciary is permissible; the respondent who has vilified cannot say that he would wish to defend himseir by leading evidence to justify the allegations oi such a nature made by him. Observations to this effect were made by the Andhra Pradesh High Court in Advocate-General, Andhra Pradesh v. V. Ramana Rao ( 0065/1967 : AIR1967AP299 . When maliious attacks were made on Shah and Hedge, JJ. by alleging that the latter merely 'toed the line' of the former, with the implication that the latter contrary to his own views followed what was imposed on him by the former, it was held that evidence to justify such allegations could not be allowed (vide C. K. Dephtary v. 0. P. Gupta. A. 0065/1971 : 1971CriLJ844 . If this is so in the case of vilification of individual judges any attack on judges or the judiciary as a whole without any reference to particular cases could be only worse (vide Baihina Prakash Sharma v. The State of U.P., : 1954CriLJ238 . the following observations of Krishna lyer, J. in Banuiakaanta Mishra ( 1 ) also seem to support this view :
'INthis sector even truth is no defense, as in the case of criminal insult-in the latter because it may produce violent breaches and is forbidden in the name of public peace, and in the former because it may demoralise the community about courts and is forbidden in the interests of public justice as contempt of court.'
(37) The passage already cited from Oswald explains the reasonfor this approach. Scandalising judges or the judiciary itself is prohibited in order to 'keep the stream of justice clear'. This very effort would be defeated by a contemner who scandalises being permitted to adduce evidence in support of such allegations.
(38) In his affidavit dated 26-5-1975 the respondent had staled in para 12 as follows :
'12.That I would like to submit that evidence comprising of the following documents and individuals are to be summoned for proper appreciation and decision of this case :
(A)recommendations made by the former Chief Justice in respect of the appointment;
(B)records from the Ministry of Law;
(C)records in Appeal No. 451 of 1973 on the file of the then senior Sub-judge, Tis Hazari Courts;
(D)the entire record in respect of the complaint lodged against the senior sub-judge and the subsequent findings made by the Vigilance Committee, including, if any the statement of the respondent therein.
The name of the Judge mentioned in the affidavit has been omitted.
(E)Hon'ble Mr. Justice V. R. Krishna lyer of the Supreme Court in respect of an article contributed by him. in the Anniversary Number of the 'Shankar's Weekly' in May 1975, Hon'ble Chief Justice Mr. Tatachari, Mr. Justice V. D. Misra, Mr. Justice M. S. Joshi, Attorney- General Mr. Niren De in respect of the scathing attack made against the sitting Supreme Court Judge Mr. Justice P. N. Bhagwati and a few others'.
Not only (a) but (b) also obviously relates to recommendations made in respect of the appointment of a Judge of this Court and they are in no way relevant in these proceedings. There is no need to be detained in these proceedings by (c) either because there was no appeal against what was decided by Shri B. B. Cmpla; (d) pertainto the complaints lodged against Shri B. B. Gupta before the Vigilance Committee. These have no further relevance when the respondcnl had told the Vigilance Committee that he was not attributing corrupt or improper motives to Shri B. B. Gupta. The complaints concerning adjournments and loss of certain records had been directed to be looked into on the administrative side and the respondent was also informed accordingly. The respondent had nonetheless leveled attacks not only against Shri B. B. Gupta but also against the Vigilance Committee. The Vigilance Committee consisted of the then Chief Justice and T.V.R. Tatachari and V- D. Misra, JJ. before whom the respondent had himself appeared on 12-4-1974: the Registrar had informed the respondent by his letter dated 28-5-1974. of the decision of 'the Hon'ble Judges of the Vigilance Committee' who heard the respondent in person and that 'their Lordships' (in the plural, again) could not infer any malice on the part of Shri B. B. Gupta. In the face of this letter the respondent was not at all justified in making such allegations involving not only the Hon'ble Chief Justice but also two other sitting Judges of the Committee.
(39) The respondent's counsel made a strenuous effort to show that the impugned communication only related to the Chief Justice who was either retiring or had retired but not the other two sitting Judges of this Court. These submissions were made by placing reliance on two decisions reported in Gyan Singh Bohra v. Ram Bheja Lal Malik 1959 P.L.R. 459 (31) Rama Surat Singh v. Shiv Kumar pandey : AIR1971All170 which held that making averments against a retired Judge would not constitute contempt. We do not desire to express any opinion on this aspect; we consider it needless for the purpose of this case, to do so. Even assuming that this contention, as a matter of law, is correct, the respondent is faced with this difficulty, namely, that he had, in the impugned letter leveled attacks in this respect not only against the Chief Justice but also two other sitting Judges. He had gone the length of saying that 'to the perverted and brainless major issues were not visible', that to 'protect one criminal, it appears another high class criminal, tried his best to ignore the major issues contained' in his complaint and affidavit and that 'ultimately as a compromise ordered an enquiry against petty issues so that the criminal may escape without any kind of punishment'. He had not hesitated to describe the High Court Vigilance Committee itself as a 'bogus one promoted with a view to hiding the truth'. He made a further assertion that he did 'not believe that Hon'ble Justice Mr. V. D. Misra and Justice Mr. Tatachari would have subscribed to the findings made by S. N. Andley'. This inference was sought to be supported by the further statement 'your own letter indicates as such'. We were not told what there is in the Registrar's letter dated 28-5-1974 which could even suggest that the other two Hon'ble Judges were not parties to the decision of the Vigilance Committee; the passages discussed above reveal the contrary. As Sikri, C. J. observed in 0. P. Gupta's case the clear implication here is that if the other two judges were parties to the decision, as indeed they were stated to be, it was a case of their being imposed upon by the Chief Justice and their having been persuaded to act against their own inclinations. In these circumstances the request contained in the said affidavit that V. D. Misra and T.V.R. Tatachari, JJ. should be examined has nothing to commend it. Regarding the Registrar Shri (now Justice) M. S. Joshi also the position is no different. He was also present, according to the respondent at the meeimg of the Vigilance Committee. He wished to seek in aid his own statement (vide para 7 of his affidavit dated 19-9-1974) that he had described the Vigilance Committee as consisting of not only the Chief Justice and the two Judges of this Court but also the Registrar. But this impression, even if it was genuine, is of no legal consequence whatever because it is not necessary to be detained by the earlier contention urged, in the affidavits filed by him, that the Vigilance Committee is not a court; the law clearly is that contempt of court would include within its sweep not only judicial functions hut also administrative functions of a judge. The mere fact that the Registrar was also considered by the respondent to be a member of the Vigilance Committee would not in any way affect the position that the Chief Justice and the two Hon'ble Judges were functioning qua judges but not qua individuals. It has not been stated anywhere by the respondent that he thought that the Vigilance Committee was a body of private men; there was no such averment because he knew it was plainly impossible to make suchan assertion. In this view there can be no need whatever, even on the facts (even if this course were legally permissible), to examine any of these persons.
(40) We are wholly unable to understand the reference to an article contributed by V. R. Krishna lyer, J., wh ich article itself has not been placed before us. The views of V. R. Krishna lyer, J. expressed In Baradakanta Misra have already been referred to at length.
(41) Still less are we able to appreciate the reference to the Attorney General having made an 'attack against a sitting Supreme Court Judge' and a few others. We have not even been referred to the details of these and we consider that this- reference is wholly misconceived and is irrelevant for our present purpose. He accordingly reject the request made by the respondent to send for records and examine witnesses.
(42) Mr. S. N. Mehta, learned counsel for the respondent only feebly contended that the above statement of law in Registrar of the Orissa High Court v. Baradakanta Misra : AIR1973Ori244 is not supported by the two decisions of the Supreme Court referred to therein, namely, Perspective Publications v. State of Maharashtra ( : 1971CriLJ268 and C. K. Daphtary v. 0. P. Gupta 0065/1971 : 1971CriLJ844 . This is not a correct understanding of these cases. The legal aspect was alio discussed by one of us (S. Rangarajan, J.) spking for a Division Bench of this Court in the matter of contempt of court proceedings taken against K. S. Sethi .
(43) Mr. S. N. Mehta next contended that section 17(5) of I he Act, was introduced in order to give the respondent a right to let in evidence in justification of the averments which gave rise to the contempt proceedings against him and for this reason even when. judges or the judiciary are scandalised evidence can be led to justify the allegations. Section 17(5) has already been noticed; it is clear from it that it only contemplates that in support of his defense he may rely on either the affidavits or such evidence which the court may find necessary. If the offence of contempt was committed by scandalising the judges or the judiciary the law has throughout been that the respondent could not seek to justify it; no defense, other than what the Act itself permits, is open to a respondent. It was .noticed that sections 4 to 7 state that no contempt is said to be committed in certain eventualities. All that section 8 provides is that nothing in the Act shall be so construed that any other defense, which would have been a valid defense to any proceedings for contempt of court has ceased to be available merely by reason of the provisions of the Act. It will be worth repetition to state that if justification was not possible in respect of a publication which amounted to contempt because it scandalised any judge or the judiciary it is inconceivable how the respondent could claim that the present Act has conferred any new or additional defense in this respect. The Act itself is not a self-contained Act as Section 22 would show : this Act is in addition to and not in derogation of the provisions of any law relating to contempt of court. Mr. S. N. Mehta's argument on this point amounts to no more than tAis, namely, that despite the Act attempting, by its express terms, a kind of balancing between the doctrine of free speech without any regulation and regulation of free speech in areas where administration of justice is concerned, no such regulation is possible; this files in the face of the legislative policy, intent and the express language employed.
(44) In the light of the above discussion it is clear that if action for contempt is called for it is not because judges are 'sensitive' or that there is no need to speak of improving the administration of justice. Every knowledgeable person knows that there is a growing literature on judicial behavior and judicial administration, the work and character of the legal profession in various countries etc, and that the judges and judiciary in this country are constantly exercised about how to reform and improve judicial administration. But this open not open the door to such mala fide and scurrilous attacks. The impugned publication can hardly claim to be any literature, much less new literature, on this topic. It is obvious that the respondent who has obviously been aggrieved by the decision of Shri B. B. Gupta, has either chosen to make the statements attributed to him in the impugned publication deliberately for that reason or even in the view more favorable to him for the purpose of making money by selling more issues of his weekly. The subsequent publications dated 3rd and 12th of August, 1974 in the two issues of his Weekly, we may make it clear, are not being considered as separate charges, not even for assessing the quantum of punishment but only for the purpose of showing that the impugned letter dated 3rd June 1974 was even published later by the respondent and to dispel bids argument that he had no other motive except to bring the facts to the notice of either this Court alone or of even S. N. Andley, C. J, There being no difficulty whatever about the fact of publication of the impugned letter because the letter on its face bears evidence of having been dealt with by the concerned officials of the High Court in the usual manner, the letter itself not having been marked confidential and no care having been taken to see that there would not be any publication of the said letter as would be the case but for such precautions being taken, there is no need even to rely on the further publications of 3rd and 12th August, 1974. One of us (Jagjit Singh, J.) has, speaking on behalf of a Division Bench of this Court, recently discussed this aspect and explained how when the impugned material boing dealt with in the official course in this Court there is publication (Vide Court of Us own Motion v. Sant Rain (Crl. 0.83 of 1974, decided on 8th May, 1975) (33). The defense, thereforee, of there having been no publicity of the impugned letter has no force.
(45) Even assuming there could not be legally speaking, any contempt of court in respect of publication made after the retirement of S. N. Andley, C.J. this would not in any manner help the respondent. The contention that the Vigilance Committee is not a court is, as already explained, irrelevant because, it is worth emphasising by way of repetition, the test is not whether it is a court but whether the Hon'bic Judges of this Court acted qua Judges when they were doing their work as Members of the Vigilance Committee; there is or could be no doubt about this. There is still less force in the contention that only the personal facet was touched. The possibility of Explanationn by the Judge concerned is again misconceived. On the question of want of personal malice on the part of the respondent it is sufficient if there is only malice in law; as a fact he was a defeated party and he felt aggrieved. No litigant can arrogate to himself the claim of his being objectively right. It was also seen that truth is not anil crnnot be a justification in respect of scandalising judges or the judiciary. All the contentions of the respondent set out as numbers 1 to 7 have no merit whatever.
(46) Another contention of Mr, Mehta was that the proceedings of this Court dated 16-5-1975 amounted to issuing a 'second motion' for contempt and, thereforee, bad in law. This contention has no force. By the proceedings dated 24-7-1974 notice was ordered by the Division Bench to the respondent only to show cause why be should not be punished for contempt under this Act; the reason for this course has, as noticed earlier, been explained in the order dated 16-5-1975. All that happened was that the attention of he respondent was drawn to certain passages (set out earlier) from the impugned letter dated 3-6-1974; he was informed that proceedings were taken suo motu a notice of this motion was directed to be personally served on the respondent. Section 15 requires that when cognizance is taken of criminal contempt, suo motu or otherwise as prescribed, every motion or reference shall specify the contempt of which the person charged is alleged to be guilty. What has happened is not only in consonance with the letter but also the spirit of the law. The argument of Mr. Mehta that since the Criminal Procedure Code docs not apply (which alone gives the power to amend a charge) there can be no amendment of the charge by what he calls the 'second motion' dated 16-5-1975 is again misconceived. What happened earlier, on 24-7-1974 was only the issue of a 'show-cause' notice reforring to the impugned letter, about which the Division Bench, at that stage, had yet to make sure whether it was written by the respondent; the proceedings dated 16-5-1975 did nothing more than draw his attention specifically to certain portions out of the said letter. Mr. Mehta has not been able to explain what departure there .has been from the procedure laid down by the Act in the present case.
(47) The last of the contentions of the respondent is that the penal provisions of this Act arc hit by Article 19(1) of the Constitution. The previous Contempt of Courts Act (of 1953) was challenged on the ground of unconstitutionality more than once. These attacks have been consistently repelled. In 0. P. Gupta's case SiKri C.J. referred to the following observations of S. K. Das, J. (as he then was) in Legal Remembruncer v. B- B. Das Gupta I.L.R. (1953) Pat. 1069 (34) as follows :
'THESEtests have been part of the meaning of the expression contempt of Court from before the Constitution and are still a part of its meaning-meaning which the framers of the Constitution must have known when they used the expression. We arc giving no wider connotation to it, and it is idle to contend that such a connotation imports any unreasonable restriction on freedom of speech and expression. We agree with the observations of the learned Judge.'
(48) It is needless to refer to other decided cases or be detained further on this question except to notice a further argument of Mr. S. N. Mehta that the present Act had made the law of contempt stricter against the contemner by reason of scandalising having been included within the definition of contemner within section 2(c) of -the Act. This. argument itself is misconceived as the above discussion will show; scandalising always constituted contempt.
(49) By reason of section 13 of the Act the courts will not act in this respect unless the contemner substantially interferes or tends to interfere with the due course of justice. Even previously the law was no different : the courts would not initiate proceedings for contempt without the due care and caution they deserve and could not act in cases where there was mere technical contempt vide in re: P. C. Sen : 1970CriLJ1525 .
(50) None of the changes made in the new Act arc such that it could give room for any fresh attack on its constitutionality. Mr. S. N. Mehta has himself not been able to explain to us, in any logical manner, how there can be any fresh attack on constitutionality by reason of any change made by the Act. We should not fail to bear act in cases where there was mere technical contempt vide in re: no such an attack was made.
(51) Regarding the contents of the impugned letter of 3rd June, 1974 Mr. S. N. Mehta was at great pains to explain that the respondent had only used wrong words, that his statements are so wide as could not make any reasonable person, think poorly of the judiciary. After hearing him at length on this question we have not been able to find any force in the laboured Explanationns he attempted. After inviting the Registrar's attention to his own earlier letter the respondent opened up with the statement 'it is rightly said that the present-day administrators of justice have converted the judiciary into a slaughter house of justice'. He sought to reinforce it by an earlier statement which he made in what he himself chose to describe as a 'leading' article published by him as early as 1968 calling upon the Law Ministry to 'hang these judges at the nearest lamp post and burn the posts also, so that they may not contaminate others with their perjury'. Mr. S. N. Mehta would like these observations to one referred to by P. T. Rama Nayar, C.J. in the majority judgment in Namboodripad's (17) case that nobody would, for instance, take seriously a statement that 'all judges take bribes'. But the impugned letter is very much more mischievous. There is a statement to the following effect :
'Ido not say that all the judges of this land are bad. A few may be an exception but then they are in minority and find themselves weak against the organized gangs.'.
(52) He went on to say that the communication of the Registrar informing him of the decision of the Vigilance Committee 'headed by a headless Chief Justice' could not be worse than what he had described earlier. He has also accused the Chief Justice of being
'RESPONSIBLEfor most of the corruption and groupism among judicial officers' and that 'terrible corruption and stupidity shown by judicial officers have a direct bearing with the existence of S. N. Andley as the Chief Justice'. Yet he climbed down from this position later to merely say that S. N. Andley C.J. was a 'good-man' and that whatever evils he had alluded to earlier stemmed from his goodness. All these are surely not mere 'wrong use of words' as Mr. S. N. Mehta claimed; they show 'wrong headedness'.
(53) The other material passages in the impugned letter have alicadv been discussed.
(54) In the entire context it cannot be said that the impugned letter is only something of a merely general kind which could be ignored; it was written in the context of a judgment delivered by Shri B. B. Gupta, attacking it as 'malicious, mischievous and outrageously wicked'.
(55) This was also an attack on the decision of the Vigilance Committee, which dealt with his complaint, accusing it of 'deliberately ignoring the major issues' and 'ultimately, as a compromise, ordering an inquiry only against petty issues' in order 'that criminal B. B. Gupta' may escape without any kind of punishment. It is worth recalling that he had not even hesitated to call the Vigilance committee of this Court 'a bogus one promoted with a view to hiding the truth'. There is no doubt in our minds that this was scandalising the judiciary and judges. In addition, there has also been specifically villification of the learned Subordinate Judge, Shri B. B. Gupta also. This was clearly malicious and unwarranted especially after the respondent had himself absolved Shri B. B. Gupta of improper motives when he (the respondent) appeared before the Vigilance Committee on 12-4-1974. The respondent's delayed attempt to deny that he ever absolved Shri B. B. Gupta of such motivation and his further statment that corruption of a judge did not only mean taking a bribe but would include other irregular acts is an after-thought. Not even having filed an appeal against the decision of Shri B. B. Gupta he could not argue before the Vigilance Committee that his decision was wrong on the merits: he could, if at all, only complain of any 'deliberate' delay in his appeal being disposed of and this had been ordered to be looked into, to his knowledge.
(56) Scandalising judges and the judiciary as the respondent has indulged in amounts to substantial interference with due course of justice: it brings the judges and judiciary into ridicule, lowers them in the public estimation (or at least tends to do so substantially) and thus weakens the authority of law and order. There is little substance in the argument for the respondent that unless the alleged contempt is explosive or leads to actual revolt there is no substantial interference with the course of justice-
(57) We held the respondent guilty of contempt as charged.
(58) The respondent did not apologise. According to section 12(1) the accused may be discharged or the punishment may be remitted on apology being made to the satisfaction of the court; the Explanationn to the said sub-section provides that an apology shall not be rejected merely on the ground that it is qualified if the accused makes it bona fide. Apart from there being no such apology by the respondent in this case at any stage of the hearing it must be noticed that when Mr. Mehta argued that a conditional apology must he inferred to have been made by the respondent the respondent who was present throughout the hearing, interfered to say that he was not making any apology.
(59) We have carefully considered the question of quantum of punishment in these circumstances : whether it should be the maximum or less Though it is probable that one of the -motivations of the respondent was to sell more copies of his Weekly by publishing such material and that he wrote the impugned letter in order to publish it in his Weekly later, we are not taking the publication'- dated 3rd and 12th August, 1974 into account even for assessing the auantum of punishment because he was not charged with them specifically. The averments in the impugned letter, even without such further publication, are quite serious and seem to merit greater punishment than we are now imposing. In being somewhat more lenient the respondent than he deserves we are moved by the consideration that we would be giving him one more opportunity, despite his not being penitent vet, to reform on pain of being dealt with more severely if he should be guilty of any further transgression.
(60) In this view we impose a substantial term of simple imprisonment of two months plus a fine of Rs. 1000/- only on the respondent.