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Advocate General Vs. K. Ramkumar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ60
AppellantAdvocate General
RespondentK. Ramkumar
Cases ReferredVincent Panikulangara v. V.R. Krishna Iyer
Excerpt:
- - it is intended to tarnish the good name of the high court. it is, however, contended that the article in question either read as a whole or in part, does not in any way constitute contempt of court within the meaning of contempt of courts act, 1971. after referring to the observations and speeches of a few judges and jurists in detail, the respondent has concluded that he has only ventured constructive and informed views and the opinion was expressed in good faith. judges are always seeking good reasons to explain wrong conduct. judges may well take care of themselves. those waiting in the long and never ending queue for justice include dismissed workmen, pensioners seeking terminal benefits, tenants facing eviction, neglected wives and a host of like others who have serious.....order1. the advocate-general, kerala, has filed this petition under sections 12 and 15 of the contempt of courts act 1971 (act 70 of 1971) against the respondent, a practising advocate of this court.. the respondent is also the managing editor of a legal journal 'the kerala law notes'. in the issue of the kerala law notes dated 21-11-1984, (part 39) an article under the caption 'priority in posting the cases' was written and published by the respondent. according to the advocate-general the said article contains untrue allegations and averments against the working of the high court as a whole, and the judges in particular, and the partiality of the judges or at least some of them is highlighted, with a view to bring the judges into contempt in the eyes of the public. it is intended to.....
Judgment:
ORDER

1. The Advocate-General, Kerala, has filed this petition under Sections 12 and 15 of the Contempt of Courts Act 1971 (Act 70 of 1971) against the respondent, a practising Advocate of this Court.. The respondent is also the Managing Editor of a legal journal 'the Kerala Law Notes'. In the issue of the Kerala Law Notes dated 21-11-1984, (Part 39) an article under the caption 'Priority in posting the cases' was written and published by the respondent. According to the Advocate-General the said article contains untrue allegations and averments against the working of the High Court as a whole, and the Judges in particular, and the partiality of the Judges or at least some of them is highlighted, with a view to bring the Judges into contempt in the eyes of the public. It is intended to tarnish the good name of the High Court. The imputations have been made recklessly without justification. The readers of the article gain a feeling that there is a 'favoured few' among the advocates who secure any order, and it is a scandalous attack on the integrity and fairness of the Judges of this Court. The article 'as a whole is scandalous' and is intended to lower the authority of the High Court and to undermine the judiciary in the minds of the public and to make them loose faith in the integrity and impartiality of the Judges. So, it is prayed that this Court may be pleased to take cognisance of the offence and to punish the respondent, according to law. The respondent has filed two counter-affidavits, dated 1-1-1985 and 7-4-1985. The authorship and publication of the article is not disputed. It is, however, contended that the article in question either read as a whole or in part, does not in any way constitute contempt of court within the meaning of Contempt of Courts Act, 1971. After referring to the observations and speeches of a few Judges and jurists in detail, the respondent has concluded that he has only ventured constructive and informed views and the opinion was expressed in good faith. It is the respondent's plea that he has not exceeded permissible limits of criticism and there was no intention at all on his part, to scandalise the Court or the Judges. In the additional counter-affidavit dated 7-4-1985 it is stated that the writing referred to, is a constructive criticism to improve the system and it may be that some of the observations may lead to a different interpretation and some readers have misunderstood the purpose. The respondent has stated that the Court may be pleased to reread his statement, in the light of the clarifications. The respondent has prayed that the proceedings may be kindly terminated.

2. In this case notice was ordered in the main petition as early as 4-12-1984. For one reason or other, the case was adjourned from time to time. After few postings, when the case was still part-heard, the respondent filed C. M. P. No. 17803 of 1985 to adjourn all further proceedings of the case, till the disposal of the transfer application filed by him in the Supreme Court in this behalf. The respondent filed affidavits in this Court stating that this Bench should not hear the case as he apprehended that he may not get justice. By order dated 17-7-1985 we adverted, in brief, to all aspects and rejected the prayer for adjournment and posted the case for hearing to 26-7-1985. Since we were told that the transfer petition was being taken up in the Supreme Court soon, we again adjourned the case. The case was heard on 12-8-1985 and the succeeding days. Respondent's counsel Sri T.P. Kelu Nambiar, did not move or press the petition for adjournment (C. M. P. No. 21283 of 1985). Counsel argued the case. Our order dated 17-7-1985 in C. M. P. No. 17803 of 1985 has dealt with the matter, rejecting the respondent's prayer and adverting in brief to the unfounded and baseless allegations made against this Bench on the basis of tell tale circumstances or events and records brought about or created by the respondent after the case became part-heard.

3. As observed by us in the order dated 17-7-1985, a party should not be enabled to get a case transferred from one Bench of the High Court to another Bench of the same Court or to any other Court by adopting some tactics. The observations of the Supreme Court reported in National Textile Workers' Union v. P.R. Ramakrishnan : 1983CriLJ1102 and 1104, are apposite in this connection.

The contemner seems to think that he can deter the Judges from discharging their duty by maligning them before the public....Judges must tread their path of rectitude undeterred by such threats. This Court is there to protect them from scurrilous accusations prompted by malice.

4. The learned Advocate-General at the outset stated that notwithstanding the various allegations and events that took place in the interval, we should dispose of this matter unswayed by whatever happened, including the reckless allegations made by the respondent. We were told that we should not be hyper-sensitive or influenced by the various proceedings and aspersions made by the respondent. We are fully aware of the nature of our duty and responsibility while exercising our jurisdiction in contempt proceedings. In this context, it will be useful to quote the following observations of the Supreme Court in Asharam M. Jan v. A.T. Gupta : 1983CriLJ1499 . Delivering the judgment of the Bench, Chinnappa Reddy J. observed:

There is never any risk of judicial hypersensitivity. The very nature of the judicial function makes judges sympathetic and responsive. Their very training blesses them with 'insensitivity', as opposed by hypersensitivity. Judges are always seeking good reasons to explain wrong conduct. They know there are always two sides to a coin. They neither give nor take offence because they deal with persons and situations impersonally, though with understanding. Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation. But, as elsewhere, lines have to be drawn. The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected

[Underlining supplied)

5. The subject matter of contempt, the full text of the article published in Kerala Law Notes, dated 21-11-1984, Journal Section p. 21, is included at pp. 6 to 8 of the paper book (Ext. P1). It will be useful to quote the entire article:

Journal

Priority in Posting of Cases

K. Ramkumar

Advocate

Ernakulam.

Gone are the days when the High Court of Kerala could legitimately boast itself of the foremost among the High Courts in India in speedy disposal of cases. That Court is now facing an unprecedented docket explosion and the resultant huge backlog. Believe it or not, there are cases which are as old as 10 years pending in the High Court for disposal. The' situation if permitted to continue will make the High Court a totally ineffective instrument to many for whose benefit it is primarily established. Those waiting in the long and never ending queue for justice include dismissed workmen, pensioners seeking terminal benefits, tenants facing eviction, neglected wives and a host of like others who have serious problems and tales of woe to tell the High Court, Many of them appear to be giving up midway? throwing their hands up in utter despair. The doors of the High Court have yet to open for them in spite of a long and patient wait of as many as four to five years. It must however, be conceded that there are beneficiaries too among the litigants in the High Court who gain considerably by the delay in the disposal of cases. It is common knowledge that towards the end of every financial year most of the businessmen from whom huge arrears of tax are due, affluent Abkari contractors liable to pay kist and levies to the State, loanees from Financial Corporation and like institutions, all make a beeline to the High Court, engage appropriate counsel and manage to get very liberal stays of payment of huge amounts due to the State Exchequer. The amounts thus stayed are beleagued on a modest estimate to run into hundreds of lakhs, far more sufficient for the State to meet the demands of the Government employees for enhanced Pay and Dearness Allowance. It will be interesting to note that while the ordinary litigant thus waits and waits tediously in the serpentine queue, told of the priority in posting of cases strictly by the year of filing, recently the rich Abkari contractors could easily jump the queue and get their 1984 writ applications challenging the establishment of the beverage Corporation speedily disposed of this year itself by a Division Bench specially constituted for the purpose: See Moni Senan v. State of Kerala : AIR1985Ker111 .

The situation alarming enough, yet does not appear to have helped those in charge of the management of the affairs of the High Court to wake up from their slumber. Judgments are still pronounced months - even an year - after the arguments are closed. Requests for adjournment still continue to be made, even for old matters. Added to all this is the delay in filling up the existing vacancies of Judges - in spite of best efforts by some of the members of the Bar.

Our High Court fortunately is reputed to have a very hard working and incorruptible staff putting in all their best, despite most unattractive service conditions. It is perhaps paradoxical that those who strive hard for the rights of others have themselves no rights - not even to grumble about their own lot. The time has come for recasting the fixing of priorities in the posting of cases. Cases cannot be treated as not sourgent solely because they reach late to the High Court. The accent should be on the nature of the relief - not on the particular year in which the cause was brought to the Court.

(Underlining supplied)

6. A memo of charges framed by the Advocate-General dated 3-12-1984 is contained at p. 4 of the paper book. It is as follows:

Memo of Charge

That you Sri K. Ramkumar, Advocate being the Managing Editor of the journal 'Kerala Law Notes' made and published in the journal section of law Notes in Part 39 dated 21-11-1984 an Article under the caption 'Priority in posting of cases' in which you made untrue and baseless accusations and aspersions against the Judges of the Kerala High Court and the effect of the statements made by you is sufficient to undermine the judiciary in the minds of the public and make them loose faith in the integrity and impartiality of the judges and in thus scandalising the Court you have committed an offence described in Section 2(c) of Courts Act punishable under Section 12 thereof and you are called upon to answer the said charge.

(Underlining supplied)

According to the learned Advocate-General, the respondent is guilty of 'criminal contempt'. He has scandalised the Court and the administration of justice. Persons who are influential or rich 'engage appropriate counsel', 'manage' to get very liberal stay. It implies, there are a favoured few, among the advocates. It is also stated in the article and it means and implies, that the favoured few are able to 'jump the queue' and get priority. The reflection is on the impartiality and integrity of the High Court, as a whole. The article should be read as a whole. The intention of the maker is irrelevant. It is a deliberate attempt to undermine the judiciary in the eyes of the public and make them loose faith and integrity in the administration of justice. The respondent (advocate) is the Proprietor, Managing Editor and Publisher of Kerala Law Notes. The journal is read by lawyers and litigant public. It is stated that all is not well with this Court. He has scandalised the Court and has exposed himself to punishment under Section 2(c)(i) and (iii) of the Contempt of Courts Act, 1971. The respondent has far-exceeded the legitimate or permissible limits of criticism.

7. The defence of the respondent, in brief, is as follows:

(1) The petition filed is not clear. General aspersions are made in the affidavit and in the charges. This is not enough. The Rules of the High Court of Kerala have not been conformed to. The charge should be specific. It is not so, here.

(2) On the merits, as stated in the counter-affidavits filed, the respondent has not committed any contempt. The respondent had in mind the expression of opinion of judges and jurists and the anxiety expressed by them from time to time regarding the mounting arrears and the delay in disposal of cases, the disadvantage to the poorer and weaker section of the society due to the adverserial procedure, the practice of granting interim stay in the payment of duties and taxes, etc; when he wrote the article. The article contained only fair comments on the above aspects. It is only constructive and well-informed criticism and expressions of views. Being an advocate, the respondent was considerably influenced by the above unhappy state of affairs and thought of inviting the attention of the persons concerned. There is no reference to judges or administration of justice. By using the word 'appropriate counsel' the respondent only meant that rich clients engaged 'specially suitable or proper counsel' and succeed in getting liberal orders of stay. The word 'appropriate' means only qualified counsel. The word 'manage' means 'act of handling the case by the counsel'. It does not mean that there is a favoured few among the advocates and there is no reflection cast or meant on the impartiality or integrity of the High Court or the judges or the administration of justice.

(3) The proceedings in contempt are quasi criminal in nature. The case should be clearly proved, beyond reasonable doubt. The effect of the words should be read in the context and the setting and the circumstances. If the meaning of the words is not inconsistent with the explanations given by the respondent, the Court should not go further and scrutinise whether any other meaning is possible. The petition filed for taking proceedings in contempt is unsustainable.

8. Mr. S. Narayanan Poti, amicus curiae, submitted that the article in the Kerala Law Notes dated 21-11-1984 read as a whole, attacks the efficiency, integrity and impartiality of the High Court. It imputes favouritism and unfairness to the High Court. The article conveys that persons like the dismissed workmen, pensioners, tenants etc. (the downtrodden), who have serious problems, are still waiting, throwing up their hands in utter despair while rich persons like Abkari contractors and businessmen, get priority and relief. The High Court is an ineffective instrument to many for whose benefit it is primarily established. The two exclamation marks, after the third sentence and also at the end of the first paragraph, are significant. The reference to Moni Senan's case : AIR1985Ker111 is to create an impression that the rich Abkari contractor, was able to get a speedy (favourable) disposal. Persons who do not know the full facts of the case, may get the impression that the contractor had won the case. It is not so. It was solely intended to give a false picture. Persons in charge of the 'management of the High Court' are in slumber. The High Court staff cannot grumble about their own lot. Favouritism, impartiality, unfair conduct and lack of integrity are imputed. The respondent has scandalised the Court. The article lowers the authority of this Court. It interferes or obstructs the administration of justice.

9. The learned Advocate-General, counsel for the respondent Mr. T.P. Kelu Nambiar and Mr. S. Narayanan Poti, senior counsel of this Court, who was appointed as amicus curiae by this Court, brought to our notice an array of judicial decisions, on the subject. We also heard counsel at length. The principles to be borne in mind in contempt proceedings and the circumstances in which the Court could punish a person for having committed contempt, have been adverted to in detail in the various decisions of the Supreme Court. We shall only refer to the principles laid down in the important decisions, brought to our notice. The following propositions emerge from a review of the decided cases;

(A) In order to decide whether the particular act or conduct amounts to contempt, each case must be examined on its own facts and the decisions must be reached in the context of what was done or said. - K.M. Sankaran Namboodiripad v. T. Narayanan Nambiar : 1970CriLJ1670 . The decision on the question must depend upon the totality of the facts and circumstances - In Re: S. Mulgaokar AIR 1978 SC 727 at page 734 (Para 17).

(B) The relevant article should be read as a whole. It should be read in a 'broad manner', and the 'broad impression' that the article creates on the mind of a normal reader should be the test for the purpose of calculating the possible mischief that such an article would lead to Abdul Jabbar v. R.K. Karanjia : AIR1970Bom48 . The question is not what the writer of the article intended, but what a reasonable man, knowing the circumstances, in which the words were published, would understand to be the meaning- Hussain v. Thangal, 1961 Ker LT 1033 (Para 11); Delhi Development Authority v. Durga Chand : [1974]1SCR535 ; Catley on Libel and Slander, 8th Edn. Paras 88, 89 etc.

(C) Proceedings by way of contempt are quasi criminal in nature. It should be proved beyond reasonable doubt. Mens rea is not an indispensable ingredient of the offence. The question of intention of the contemner is not material. What is relevant is the likely effect of the words in the eyes of the people. The intention is relevant only in the imposition of penalty. - Vide S. Abdul Karim v. M.K. Prakash : 1976CriLJ641 , Rajendran v. Vayaler Ravi, : AIR1983Ker105 , B.K. Lala v. R.C. Dutt : AIR1967Cal153 , R. v. Odham's Press Ltd., (1956) 3 All ER 494; in Re: B. Yegnanarayaniah AIR 1974 Mad 313, Shri Baradakanta Mishra v. Registrar of Orissa High Court : 1974CriLJ631 , K. M. S. Namboodiripad's case : 1970CriLJ1670 , C.K. Daphtary v. O.P. Gupta 0065/1971 : 1971CriLJ844 .

(D) The jurisdiction in contempt should not be invoked unless there is real prejudice which can be regarded as substantial interference with due course of justice and the purpose of the Court's action is a practical purpose. The jurisdiction will not be exercised upon mere question of propriety. It should be exercised sparingly, consciously, wisely and with circumspection and only in exceptional cases. - Rizwan U1 Hasan v. State of Uttar Pradesh : 1953CriLJ911 , In Re. Article 143 of the Constitution of India : AIR1965SC745 and Andre Paul Terence Ambard v. Attorney-General of Trinidad and Tobago AIR 1936 PC 141 at pp. 145 and 146.

(E) The proceedings in 'contempt' are neither 'civil' nor 'criminal' in character. It is a 'special' jurisdiction which is 'inherent' in the High Court, as a Court of record. The High Court can deal with the matter summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself - Sukhdev Singh v. Teja Singh AIR 1954 SC 186 : 1954 Cri LJ 460 (at pp. 461, 462, 464) (Paras 3, 4, 5 and 24) - See also K.J. Aiyar - Law of Contempt of Court (1983) 6th Edn. page 48, pages 86 and 156).

10. 'Contempt of Court' means an act or omission calculated to interfere in the due administration of justice. The offence consists in interfering with the administration of law, in impeding and preventing the course of justice, it is not the dignity of the Court which is offended - a petty and misleading view of the proceedings involved - It is the fundamental supremacy of the law which is challenged. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained. The abuse of process of the Court calculated to hamper, the due course of a judicial proceeding or the ordinary administration of justice is contempt of Court The public have a real and vital interest in the administration of justice. The power is vested in the Court to protect and vindicate the rights of the public, so that the administration of justice shall not be prevented, prejudiced or obstructed or interfered with. It is a mode of indicating the majesty of the law in its active manifestation against obstruction and outrage - Advocate-General. State of Bihar v. M/s. Madhya Pradesh Khair Industries : 1980CriLJ684 , Attorney-General v. Leveller Magazine Ltd., (1971) 1 All ER 745 (at p. 757), Prabhakara Menon v. Managing Director, KSRTC, 1985 Ker LJ 383 at pp. 386 and 387, The King v. Dunbabin (1935) 53 Commonwealth Law Reports, 434, at pp. 442 and 443.

11. We shall first dispose of the point that the petition filed in this Court is unsustainable and the charge against the respondent is not clear. As stated by the Supreme Court in Sukhdev Singh's case AIR 1954 SC 186 at p. 190 : 1954 Cri LJ 460 at p. 464, the High Court can adopt its own procedure in the matter. It is not the case of the respondent nor is it substantiated that any particular procedure prescribed by the Rules of the High Court of Kerala has been contravened in the matter. All that is necessary is that the procedure adopted should be fair and the respondent should be made aware of the charges against him and should be given a fair and reasonable opportunity to defend himself. In this connection, it is to be noted that the entire article formed part of the petition at Ext. P1. Sufficient notice was given. Sufficient opportunity was given to the respondent to defend himself. A look at the two detailed counter-affidavits filed by the respondent dated 1-1-1985 and 7-4-1985 will show that the contention in this regard is without force. Before us, no prejudice in the matter was alleged either. We see no force in this contention.

12. Bearing the general principles, mentioned in Paras 9 and 10 herein above in mind, we shall now advert to the law applicable more particularly to the instant case, so as to examine the tenability or otherwise of points Nos. 2 and 3. According to the learned Advocate-General, the respondent has scandalised the Court and has committed criminal contempt. Section 2(c)(i) and (iii) of the Contempt of Courts Act, 1971 are relied on. We shall extract Section 2(c)(i), (ii) and (iii):

'2. Definitions: In this Act, unless the context otherwise requires, -

(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) prejudices, or interferes or tends to interfere with, the due course 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;

(Underlining ours).

In Shri Baradakanta Mishra v. Registrar of Orissa High Court : 1974CriLJ631 delivering the judgment of the Constitution Bench, Palekar J., after referring to Section 2(c) of the Contempt of Courts Act, 1971 observed:

It will be seen that the terminology used in the definition is borrowed from the English law of contempt and embodies concepts which are familiar to that law which by and large, was applied in India. The expressions 'scandalise', 'lowering the authority of the Court', 'interference', 'obstruction' and 'administration of justice' have all gone into the legal currency of our sub-continent and have to be understood in the sense in which they have been so far understood by our courts with the aid of the English law, where necessary. (Para 34)

'....all the three sub-clauses referred to above define contempt in terms of obstruction of or interference with administration of justice. Broadly speaking our statute accepts what was laid down by the Privy Council and other English authorities that proceedings in contempt are always with reference to the administration of justice. It is enough for our purpose to refer to Debi Prasad Sharma v. The King Emperor, 70 Ind App 216 : AIR 1943 PC 202 in which Lord Atkin delivering the judgment of the Judicial Committee observed at p. 223 as follows:

In 1899 this Board pronounced proceedings for this species of contempt (scandalisation) to be obsolete in this country, though surviving in other parts of the Empire, but they added that it is a weapon to be used sparingly and always with reference to the administration of justice:

McLeod v. St. Aubyn (1899) AC 549. In re a Special Reference from the Bahama Islands, (1893) AC 138 the test applied by the very strong Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law. In Queen v. Gray, (1900) 2 QB 36 it was shown that the offence of scandalising the Court itself was not obsolete in this country. A very scandalous attack had been made on a Judge for his judicial utterances while sitting in a criminal case on circuit, and it was with the foregoing opinions on record that Lord Russell of Killowen, C. J., in adopting the expression of Wilmot, C.J., in his opinion in Rex v. Almon 1765 Wilm 243 : 97 ER 94 which is the source of much of the present law on the subject, spoke of the article complained of as calculated to lower the authority of the judge. (Para 37)

It is, therefore, clear that scandalization within the meaning of sub-cl. (i) must be in respect of the Court or the Judge with reference to administration of justice.' (Para 38) We have not been referred to any comprehensive definition of the expression 'administration of justice'. But historically and in the minds of the people, administration of justice is exclusively associated with the Courts of justice constitutionally established. Such Courts have been established throughout the land by several statutes. The Presiding Judge of a' Court embodies in himself the Court, and when engaged in the task of administering justice is assisted by a complement of clerks and ministerial officers whose duty it is, to protect and maintain the records, prepare the writs, serve the processes etc. The acts in which they are engaged are acts in aid of administration of justice by the Presiding Judge. The power of appointment of clerks and ministerial officers involves administrative control by the Presiding Judge over them and though such control is described as administrative to distinguish it from the duties of a Judge sitting in the seat of justice, such control is exercised by the Judge as a Judge in the course of judicial administration. Judicial administration is an integrated function of the Judge and cannot suffer any dissection so far as maintenance of high standards of rectitude in judicial administration is concerned. The whole set up of a Court is for the purpose of administration of justice and the control which the Judge exercises over his assistants has also the object of maintaining the purity of administration of justice. These observations apply to all Courts of justice in the land whether they are regarded as superior or inferior Courts of justice. (Para 43)Courts of justice have, in accordance with their constitutions, to perform multifarious functions for due administration of justice. Any lapse from the strict standards of rectitude in performing these functions is bound to affect administration of justice which is a term of wider import than mere adjudication of causes from the seat of justice. (Para 44)What is commonly descibed as an administrative function has been, when vested in the High Court, consistently regarded by the statutes as a function in the administration of justice. (Para 46)We thus reach the Conclusion that the Courts of justice in a State from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice, and it is the expectation and confidence of all those who have or likely to have business therein that the Courts perform, all their functions on a high level of rectitude without fear or favour, affection or ill-will. (Para 47);'....The object, as already stated, is not to vindicate the Judge personally but to protect the public against any undermining of their accustomed confidence in the Judges' authority....Furhter explaining what he meant by the words 'authority of the court', he observed:

the word 'authority' is frequently used to express both the right of declaring the law. which is properly called jurisdiction, and of enforcing obedience to it, in which sense it is equivalent to the word power but by the word 'authority', I do not mean that coercive power of the Judges, but the_deference and respect which is paid to them and their acts, from ait opinion of their justice and integrity. (Pans 48)Scandalization of the court is a species of contempt and may take several forms. A common form is the vilification of the Judge. When proceedings in contempt are taken for such vilification the question which the court has to ask is whether the vilification is of the Judge as a Judge.... (Para 49)....if the attack on the Judge functioning as a Judge substantially affects administration of justice it becomes a public mischief punishable for contempt, and it matters not whether such an attack is based on what a Judge is alleged to have done in the exercise of his administrative responsibilities. A Judge's functions may be divisible, but his integrity and authority are not divisible in the context of administration of justice. An unwarranted attack on him for corrupt administration is as potent in doing public harm as an attack on his adjudicatory function. (Para 50)....there is high authority for the proposition that vilificatory criticism of a Judge functioning as a Judge even in purely administrative vilificatory criticism of a Judge amounts to criminal contempt.... (Para 52)Justice Krishna Iyer, delivering a concurring judgment on his behalf and on behalf of Bhagwati, J. (as he then was), gave different reasoning to arrive at the same conclusion. At p. 732, Krishna Iyer, J. observed:....Commonsense and principle can certainly accept a valid administrative area so closely integrated with Court work as to be stamped with judicial character such as constitution of benches, transfer of cases, issue of administrative directions regarding submission of findings or disposal of cases by subordinate Courts, supervision of judicial work of subordinate Courts and the like. Para 79)

Again at page 733, the learned Judge observed:..Is the suspension of the District Judge so woven into and integrally connceted with the administration of justice that it can Be regarded as not purely an administrative act but a para-judicial function? The answer must, on the facts here, be in the affirmative. The appeal was against the suspension which was a preliminary to contemplated disciplinary action. What was that action about? Against the appellant in his judicial capacity, for acts of judicial misconduct. The control was, therefore, judicial and hence the unbridled attack on the High Court for the step was punishable as contempt. (Para 81)

In Rachapudi Subba Rao v. The Advocate General, Andhra Pradesh : 1981CriLJ315 ) Sarkaria, J. delivering the judgment of the Bench, after adverting to Section 2(c) of the Contempt of Courts Act, 1971 observed:

It is noteworthy, that in the categorisation of contempt in the three Sub-clauses (i) to (iii), only category (ii) refers to 'judicial proceeding.' Scandalizing of Court in its administrative capacity will also be covered by Sub-clause (i) and (iii). The phrase 'administration of justice' in sub-cl. (iii) is far wider in scope than 'course of any judicial proceeding.' The last words 'in any other manner' of the sub-cl. (iii) further extends its ambit and give it_ a residuary character. Althoug, Sub-clause (i) to (iii) describe three distinct species of 'criminal contempt', they are not always mutually exclusive. Interference or tendency to interfere with any judicial proceeding or administration of justice is a common element of Sub-clause (ii) and (iii). This element is not required to be established for a criminal contempt of the kind falling under sub-cl. (i).

Unfounded imputation of the mala fides, bias, prejudice or ridiculing the performance of a Judge or casting aspersions on his integrity - as has been done by the appellant in the notice in question - are always considered to mean scandalising the Court, and lowering the authority of his Court by bringing him and his office into disrespect and disrepute. Vilification of the Judge, even in administrative matters of decided judicial matters, may amount to 'criminal contempt' under sub-cl. (i) of Section 2(c) as it lowers or tends to lower the authority or dignity of the Court by undermining public confidence in the capacity of the Judge to mete out even-handed and impartial justice.

(Underlining supplied).

13. Tested in the light of the principles stated in the decisions, referred to above, let us examine the facts of this case. The respondent is an Advocate. He is the Managing Editor of the Law Publication 'Kerala Law Notes'. The article in controversy is reproduced in an earlier portion of this judgment. We perused the counter-affidavits filed by the respondent with care and also heard his counsel at length. Reading the article as a whole in the context and setting, that the person who wrote that article and published the same is an advocate of this Court, the persons to whom it is intended, are the advocates and the general litigant public, is it possible to say that the article contained, only well informed or fair or constructive criticism or was it written with genuine academic interest? The answer can only be in the negative. The article was written after deliberation. On a reading of the article as a whole, the portions underlined therein, 'Many of them, (workmen, pensioners, tenants etc.) appear to be giving up midway throwing their hands in utter despair....most of the businessmen from whom huge arrears of tax are due, affluent Abkari contractors liable to pay kist and levies to the State, loanees from Financial Corporation and like institutions, all make a beeline to the High Court, engage appropriate counsel and manage to get very liberal stays' and 'while the ordinary litigant thus waits and waits tediously in the serpentine queue, told of the priority in posting of cases strictly by the year of filing, recently the rich Abkar contractors could easily jump the queue and get their 1984 writ applications challenging the establishment of the Beverage Corporation speedily disposed of this year itself by a Division Bench specially constituted for the purpose' are telling. The two exclamation marks at the end of third line of the article and at the end of the para are also significant. On the totality of the facts and circumstances, in the context and setting in which the article was written and published, its tone and temper, and intended to be read by the members of the bar and the general public, and viewed in a broad manner, the broad impression it will create in the mind of a reader, and the apparent purpose or object, cannot be said to be by way of academic interest at all; nor can it be said to be bona fide or genuine or fair or constructive or well informed criticism. The words underlined in paras 5 and 13 herein above clearly cast an unfounded aspersion on the High Court. It is a calumny calculated, deliberately to undermine the confidence of the public in this Court. In substance and in effect, there is an attack on efficiency of the High Court and the implication is that the Court has fallen on evil days and the words to convey the idea that there are a favoured few, among the advocates, who are able 'to jump the queue' and get priority, and such persons manage to get very liberal stays. The words 'appropriate counsel' is really an innuendo and insinuation in the context, There is reference to 'rich' persons who were favoured with, a 'speedy disposal' by a 'specially constituted' Bench, for the purpose, (with an exclamation) and it is very relevant. We have no doubt in our mind that the article read as a whole, looked at from the point of view of a 'normal' reader, has really scandalised this Court and has cast a serious reflection in the working of this Court, its impartiality, fairness and integrity and will destroy the confidence which people have in the administration of justice. It has the effect of lowering the authority of this Court. Its effect is to undermine the prestige and the authority of this Court in the eyes of the public. Reading the article as a whole, in a reasonable and fair manner, it has undoubtedly cast a slur in the administration of justice, the style and functioning of this Court and amounts to interference or obstruction in the administration of justice. In the circumstances, we hold that the respondent is guilty of gross 'criminal contempt' as defined in Section 2(c)(i) and (iii) of the Act and is liable to be punished under Section 12 of the Act. This is clearly proved, beyond reasonable doubt.

14. Respondent's counsel, besides relying on the various decisions aforesaid, laid particular stress on the observations of Krishna Iyer, J. at pp. 730, 732 and 733 of the judgment of the Supreme Court in Shri Baradakanta Mishra's case : 1974CriLJ631 . The reasonings of Krishna Iyer, J. are different from the reasonings given by the majority Judges, on whose behalf Palekar, J. delivered the judgment. Even Krishna Iyer, J. in para 79 of the judgment, highlighted the fact that a valid administrative area so closely integrated with Court work has to be stamped with judicial character such as constitution of Benches etc. In the impugned article, the respondent has stressed that 'rich Abkari contractors could easily 'jump the queue' and get their 1984 writ applications speedily disposed of this year itself by a Division Bench specially constituted for the purpose'. The article is likely to have an injurious effect on the minds of the public. It is really scurrilous attack against the style and mode of functioning of this Court. There is really interference with the administration of justice, on a total impression of the matter.

15. Respondent's counsel also stressed the decision of this Court in Vincent Panikulangara v. V.R. Krishna Iyer 1983 Ker LT 829 : ILR (1983) 2 Ker 626. One of us was a party to the said decision. In our opinion the said decision is distinguishable. Therein proceedings in contempt were sought to be initiated against Justice Mr. Krishna Iyer on the basis of an extempore speech, made to a selected audience of lawyers and Judges. The full text was not available nor reported. The preceding and succeeding sentences of the objectionable words adverted to were not available. It was delivered, at the Silver Jubilee Celebration of the. High Court, by an eminent Judge and Jurist, Justice Mr. Krishna Iyer, before a select audience of Lawyers and Judges. The peculiar circumstances adverted to in para 18 of the judgment, to hold, that it was only an academic exercise and that the bona fides of the speaker was not questioned, are crucial. We are of opinion that the ratio of the said decision should be confined to the facts of that case alone. That decision is totally inapplicable here.

16. We have found that the respondent is guilty of 'gross criminal contempt'. It is beset with grave or dire consequences to the administration of justice. Serious harm has resulted thereby. The article cannot be attributed to any 'innocent motive' of the respondent. It was one brought out with intention and deliberation. The plea of the respondent that it was a 'legitimate or fair' or 'constructive criticism' and a bona fide one is absolutely unsustainable. We reject the said plea.

17. Now about the sentence. Under Section 12 of the Act, the contemner can be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to Rs. 2000/- or with both. In this case, the respondent has not offered any apology nor has he expressed regfet, at any time. The proviso to Section 12(1) is inapplicable. We have held that the respondent is guilty of 'gross criminal contempt'. As stated earlier, the harm caused is serious and not at all trifle or venial. Considering the gravity of the matter and the object of 'punishment' in contempt matter, this Court would be justified in sentencing the respondent to a term of imprisonment and also in imposing a fine. On bestowing our anxious thought to the matter and taking into account the totality of the circumstances, including the fact that the respondent is an Advocate of this Court, and the case itself is the first of its kind, after considerable restraint and circumspection, we are of the view that we need sentence the respondent only to the minimal. In imposing the punishment, we have kept in mind, the principles laid down in the decisions, referred to in K.J. Aiyar's Law of Contempt of Court, 6th Edn. pp. 199, 200, 202 and 203 and Contempt of Court - V.G. Ramachandran, 5th Edn. pp. 341 - 342; 346 - 356. Keeping in view the above aspects, we need only sentence the respondent to pay a fine of Rs. 1000/-, which will meet the ends of justice in this case.

18. Accordingly, we sentence the respondent to pay a fine of Rs. 1000/- and in default to undergo simple imprisonment for a period of one month. The fine will be paid within one month from today.

Before parting with the case we place on record the immense assistance received by us from the learned Advocate General Sri P.V. Ayyappan, counsel for the respondent Shri T.P. Kelu Nambiar and in particular the valuable assistance received from Sri S. Narayanan Poti, Senior Counsel, who accepted the assignment, as an amicus curiae.


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