K. Bhaskaran, C.J.
1. The Illustrated Weekly of India has a pride of place, so we understand, in the journalistic world. It cannot afford to fish for trouble. And 'Troubled Times', an article published in its issue dt. July 7-13-1985, seems to be a 'trouble-maker'. Vilification of a Judge of a High Court naturally transcends the permissible limits of journalistic discretion, and rightly forfeits constitutional protection. Press has freedom; necessarily it is powerful; but this freedom cannot be mortgaged to cheap publicity; nor is it assured by any aggressive posture against the judiciary. Justice is not so blind as to invite its own destruction. So, the publisher and author of the article 'Trouble Times' have thus landed themselves in trouble.
2. Courts initiate proceedings suo motu under the Contempt of Courts Act sparingly, as a compelling obligation in very exceptional circumstances of urgency and imperative need. Newspapers - the Illustrated Weekly can be broadly described as belonging to this category, - it is said, are 'surrogates for the public'. When, pandering to sensationalism, forgetting century old traditions and cherished journalistic values, a publication makes a direct attack against the Judges, imputing oblique motives in the dispensation of justice, the moment of compulsion for suo motu action arises. A single statement in the press is sometimes sufficient to inflict irreparable injury to the judiciary. The article 'Troubled Times' has unfortunately aroused revolting curiosity in the minds of its readership. Let us remember Lord Denning, when he says:
The Press plays a vital part in the administration of justice. It is the watchdog to see that every trial is conducted fairly, openly and above board...(but) the watchdog may sometimes break loose arid has to be punished for misbehaviour.
In deciding to issue notice to the publisher and the author, we did not act on impulse and let it not be understood that we are hypersensitive to criticism. In this age of enquiry and acceptance, comments and criticism, judiciary cannot claim immunity from any objective, reasonable and unprejudiced criticism. Criticism can be couched in language temperate, with feelings unbiased and as comments fair and just. All the same, when the criticism is based on obvious distortions or gross mis-statements and questions the probity of a Judge and is thus designed to lower the respect for the judiciary and to destroy public confidence, it cannot be ignored. The power to punish for contempt of Court is a judicial deterrent not intended to be used frequently or for trifles, but to be used when it is needed to correct standards of behaviour ridiculing and humiliating Judges and Courts and hampering the course of justice.
3. Judicial magnanimity cannot be so elastic as to encourage speech and action which damage the confidence of the public in our judicial system and which demoralise Judges, in the discharge of their duties without fear or favour. We recognise the constitutional values of free criticism and the importance of the role assigned to the Fourth Estate. However, this power could not be so abused as to destroy the very edifice of judiciary. The majesty of law cannot be allowed to be maligned by contemner, whether it be the press or a member of the public. Independent judiciary is the hall-mark of the civilised society. It is the duty of every one who adheres to the principles of liberty, democracy and rule of law to see that the institutions of democracy are not devalued before the public and the democratic institutions are not denuded of the public confidence. The constitutional guarantee under Article 19(1)(a) of freedom of speech and expression certainly entitles to Fourth Estate, to act as a living instrument to strengthen the forces of democracy, as an indispensable intermediary between the State and the People, but within responsible reasonable limits of public accountability. It is useful to remember the observations of Frankfurter J., in Pennekamp v. Florida (1945) 328 US 331.
In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise.
Without a lively sense of responsibility, a free press may readily become a powerful instrument of in justice.
4. Motivated write ups under cover of a pro bono publico veil directed against the judiciary are safe targets for contempt action under the Contempt of Courts Act. It is then that journalistic discretion should yield to editorial control. A judicious and balanced decision has to be taken in contempt jurisdiction without being top sensitive or too lenient, taking into consideration, among other relevant factors, the context, the language, the factual accuracy, the logical foundation etc. of the statements published. It has also to be borne in mind that it is the reasonable and probable effect of what is said or done, more than the motive of the maker of the statements that is relevant.
5. Now to the facts : On June 4,1985 one Sri K. C. Chandy filed O. P. No. 5360 of 1985 (reported in 1985 Ker LT 762, FB) in this Court praying for the issue of a writ of Quo Warranto against the respondent, Sri R. Balakrishna Pillai, the then Minister of Electricity, contending that he had forfeited his right to continue in office as he committed a breach of oath of office as he had exhorted to his partyman at a convention held at Ernakulam on May, 25, 1985 to adopt the Punjab model agitation against the Centre, which amounted to sedition. On June 5, 1985 Mr. Justice K. P. Radhakrishna Menon, before whom the writ petition came up for admission directed issue of notice to the respondent in the Original Petition and in the Miscellaneous Petition and also made certain observations. The article 'Troubled Times' appeared in the issue dt. July, 7-13 1985 (on pages 14 to 17) of the Illustrated Weekly of India, edited by Sri Pritish Nandy, the 1st respondent. This article was written by Sri Venu Menon, the 2nd respondent. The article, among other things, contained the following statements:
But, when the petition was admitted and the High Court Judge made some preliminary remarks that seemed prejudicial to Pillai, the event took on a darker colouring.
High Court Judge Radhakrishna Menon opined that if the charge in the petition was capable of being interpreted as violative of a Minister's oath of office, then that Minister should of his own accord step down in observance of the high traditions of the Parliamentary system of Government.
Balakrishna Pillai did step down apparently in observance of 'the high traditions of the Parliamentary system of Government'. But questions arose instantly as to whether the Judge had observed the high traditions of the judiciary. There is believed to be no precedent of a Judge making such remarks at the stage of admitting a petition.
If Balakrishna Pillai's anxiety to resign is suspicious, so too Judge Radhakrishna Menon's impulse to make adverse observations while admitting the petition casts doubts about the impartiality of the judiciary. Already die capital agog with loud whispers about the telephone conversation Chief Minister Karunakaran is believed to have had with Judge Radriakrishna Menon at 9,00 p.m. from Cliff House, the C.M.'s official residence, the night before the. Judge's remarks came.
For the moment, Balakrishna Pillai's future lies curled within a question mark. He has to be exonerated of the charge of sedition. If Chief Minister Karunakaran's affinity with Judge Radhakrishna Menon is not mythical, then the day of judgment might prolong itself on one pretext or other, the verdict on sedition may be a while now.
As it was felt that the article as a whole, more especially the passages extracted above, which formed the subject-matter of memo of charges against the respondents, tend to scandalise and lower the authority of the judiciary in the State, particularly of the High Court of Kerala, and it amounted to interference with administration of justice, in the due course of judicial proceedings, now pending in the writ petition, O.P. No. 5360 of 1985, we issued notice to respondents 1 and 2 to appear in Court on 23rd July 1985 and to show cause why they should not be punished for contempt of Court. On 23rd July, 1985 when both the accused presented themselves in Court, they were questioned whether they had received the memorandum of charges and they had understood them, and they answered in the affirmative. They were represented by their counsel Sri K.S. Rajamony.
6. At the outset, Sri K.S. Rajamony, the counsel for the respondents, submitted that both the respondents did not wish to contest the matter, and each of them had, as a matter of fact, filed affidavit expressing unconditional apologies for having written and published the article in question. Sri Rajamony also assured that at the earliest possible time, the unconditional apologies expressed by the respondents would be published prominently in the Illustrated Weekly of India. He also submitted on behalf of the respondents that the respondents withdraw every statement which formed the subject matter of charges against them. It was also submitted by Sri Rajamony that the first respondent, who is the editor of the weekly, caused the publication of the article inadvertently by an oversight without proper scrutiny. According to his submission, the 2nd respondent, a young and promising journalist, having a bright future before him, had realised his mistake and was sincerely regretting and repenting for the damage the article had caused to the Judge concerned, the judiciary in general and the High Court in particular. In the circumstances, he pleaded for mercy and requested that the apology may be accepted and the respondents discharged.
7. We have heard the Advocate-General also. He submitted forcefully that this was a clear case of contempt where no leniency was called for. He referred to the objectionable passages in the article, the subject matter of the charges and stated that irreparable damage had already been done to the judiciary and if the extensive readership of the weekly was informed that the High Court could be influenced by the executive and that a particular Judge, in a particular case, acted, at the behest of the Chief Minister, there could not be a worse form of contempt. He proceeded to submit that the charges having been admitted by the respondents, exemplary punishment should be inflicted on them so that it shall be a lesson for others not to indulge in such reckless allegations. Nothing less than the maximum punishment prescribed under the Act would, according to him, meet the ends of justice. We have also heard Sri Dharmadan, the President of the Advocates' Association, who sought permission to intervene on behalf of the Kerala High Court Advocates' Association, Sri M.R. 'Rajendran Nair, Advocate who filed O.P. No. 6617 of 1985-S for similar relief under the same Act, Shri M.P. Krishnan Nair, Advocate, who intervened in his capacity as the General Secretary of the Law Society of India and Dr. Vincent Panikulangara, Advocate, whose application to the Advocate-General for sanction with reference to the same matter was rejected earlier as suo motu proceedings had already been initiated. These Advocates also pressed for maximum punishment.
8. At this stage we may dispose of O.P. No. 6617 of 1985-S filed through Shri M. R. Rajendran Nair in contempt proceedings, the right of a party is only to alert the Court that a contempt has been committed. He has no separate and greater rights. In view of the fact that suo motu proceedings are already initiated, this petition is unnecessary and is dismissed.
9. Judged by the probable and reasonable effect the publication is bound to have on the Judiciary, the High Court and the Judge, the charge levelled against and admitted by the respondents is really grave and serious. In the words of Lord Hardwicke:
Nothing is more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard.
Again, adverting to unwarranted comments with respect to matters pending in Court, Lord Cottenham, L.C. stated:
All these authorities tend to the same point; they show that it is immaterial what measures are adopted, if the object is to taint the source of justice and to obtain a result of a legal proceeding different from that which would follow in the ordinary course. It is a contempt of the highest order.
On the Fundamental right to freedom of speech and expression, the law of contempt imposes a significant limitation by prohibiting publication of that which prejudices a fair trial As one learned Author observes:
To be impartial and to be universally thought so are both absolutely necessary for justice.
10. Law is blind; even the Courts are expected to administer justice tempered with mercy. We have considered in depth the various aspects of the problem - the Freedom of the Fourth Estate, the fundamental right of freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution, the detached attitude the Courts are expected to take without being unduly hypersensitive to criticism and comments, unqualified apology expressed by the respondents, the submissions by the Advocate-General and the counsel who appeared before us for the respondents.
11. The statements in the article extracted in one of the earlier paragraphs, which form the basis of charges, clearly show that reckless and scurrilous attack has been made against a learned Judge of this Court, imputing oblique motives in the discharge of his judicial functions and suggesting unholy acquaintance and constant contacts with the Chief Minister, for the purpose of moulding reliefs in the pending writ proceeding. There is no doubt that the statements cast strong aspersions on the probity of the learned Judge and his impartiality. The accusations levelled are clear and plain. We have absolutely no doubt that these statements constitute criminal contempt as defined in the Contempt of Courts Act. They scandalise a learned Judge of this Court and thus the Judiciary, tend to bring the Judiciary to contempt and ridicule, lower its authority and hamper the administration of justice and the due course of justice in O.P. No. 5360 of 1985 on the file of this Court (reported in 1985 Ker LT 762, FB). We find both the respondents guilty of committing criminal contempt.
12. Both the respondents have tendered their unconditional apology, even on their first appearance in Court. Can we accept the apology as bona fide in both the cases treating both the respondents on the same footing or can there* be any difference between the publisher and the author?
13. The relevance of apology and the extent of its application have been succinctly put in the decision of the Supreme Court in the inimitable words of Thakkar, J. in Jaikwall's case : 1984CriLJ993 , from which we have quoted in extenso in a recent judgment (O.P. No. 2297/85 Advocate-General v. Rev. Fr. K.T. Mathew dt. 26-7-1985 (reported in 1985 Ker LT 726). The Judges in that decision were definitely of the view that merely because the appellant had tendered his apology, he should not be allowed to go unpunished. Acceptance of apology was not to be accepted as a rule but only as an exception, as otherwise it would virtually be issuing a licence and impunity to scandalise courts and commit contempt of Courts. In that case, we had also quoted the passages from Farook Abdulla's case : 1984CriLJ337 , wherein the learned Judges had observed:
The abuse of the liberty of free speech and expression carries the case nearer the law of contempt.... Those who attack the judiciary must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things, it cannot engage itself in an open war, nor indulge in releasing contradictions. The sword of justice is in the hands of the Goddess of Justice, not in the hands of mortal Judges. Therefore, Judges must receive the due protection of law from unfounded attacks on their character.
In the words of Lord Goddard in Odhams' Press case 1956 (3) All ER 494:
It has always been a tradition of English journalism that the editor takes the responsibility for what is published in his paper and this was held a rule of law in R. v. Evening Standard Co. Ltd., Ex parte A.G. 1954 (1) All ER 1026.
14. The Editor and Publisher, Shri Pritish Nandy has stated unequivocally that it was an inadvertent mistake on his part in allowing the article to be published. He, of course, owns the entire responsibility for the publication. He repents for the publication of this article and withdraws every offending statement, which is the subject-matter of charge in the contempt applications. He had agreed to publish a public apology in the Illustrated Weekly. In the circumstances, we accept his apology as having been made bona fide and discharge him under the proviso to Section 12(1) of the Contempt of Courts Act, 1971. However, he shall, with specific reference to this contempt proceeding, publish in bold letters and in a prominent place in one issue of the Illustrated Weekly of India and in one issue of the Times of India (all editions) an unconditional public apology for having published the article. Throubled Times' in the issue of the Illustrated Weekly of India dt. July 7-13,1985, containing statements questioning the probity of a learned Judge of this Court and challenging the impartiality and integrity of the judiciary and withdrawing publicly also those statements, which are the subject-matter of charges in this contempt proceeding. We hope that in future Sri Pritish Nandy will use his power of editorial censorship with greater precision so as not to affect the administration of justice and the independence and impartiality of the judiciary.
The 2nd respondent, Sri Venu Menon, the author of the article, has also tendered his unqualified apology 'for making certain disparaging remarks against the judiciary and casting doubts on the impartiality of the High Court of Kerala and particularly Justice K.P. Radhakrishna Menon'. He also says : 'Nor was it my intention to publish or do anything which would create mistrust in the public mind and undermine public confidence in the judiciary and the courts'. He adds : 'I have full faith and the highest respect for integrity and impartiality of the Kerala High Court'. He has no case - and he can have none that - the statements crept into the article inadvertently. The statements were an intentional assault on the integrity and impartiality of a learned Judge of this Court and on the fair name of the High Court of Kerala. Irreparable damage has already been done; no apology can undo it. The journalistic restraint, which should be inherent in a columnist of the Illustrated Weekly, was thrown into the winds. He cannot take cover under an apology, tendered later when proceedings in contempt are initiated under the Act. We are not therefore prepared to accept the apology of the 2nd respondent. We do not, however, want this young man to be sent to prison considering his age - he is 32 now, his youthful enthusiasm in journalistic adventure, his open regrets now for the statements he had made, the lesson of restraint and propriety which he would have learnt by now and the future prospects that lie ahead of him. Accordingly we impose on the 2nd respondent, Sri Venu Menon under Section 12(1) of the Contempt of Courts Act, 1971 the penalty of a fine of Rs. 1000/- (Rupees one thousand) which he shall pay within one month from today, in default, he shall suffer simple imprisonment for one month.