HARIDAS DAS v. SMT. USHA RANI BANIK & ORS

Citation: [2007] 8 S.C.R. 365

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

HARIDAS DAS v. SMT. USHA RANI BANIK & ORS.pdf

Judgment text

y HARIDAS DAS v. SMT. USHA RANI BANIK & ORS. JULY 16, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN, JJ. ] Contempt of Court: Applicant in IA making serious allegations against Chief Justice of India and Judges/Judicial Officers-Allegations found to be contemptuous- Show cause notice issued-After considering the reply which contained allegations more contemptuous, proceedings for contempt of the Court initiated against applicant-Held; While fair and temperate criticism of the Court even ifstrong.

may not be actionable, but attributing improper motives or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must be and will be taken-Statements made by contemnor amount to a scurrilous attack on the integrity, honesty and judicial competence and impartiality of Judges-It is offensive and intimidating- Contemnor by making such scandalising statements and invective remarks has interfered and seriously shaken the system of administration of Justice by bringing it down to disrespect and disrepute--Contemnor is guilty of contempt of Court-Sentenced to undergo imprisonment for a period of two months-Constitution of India-Article 129. The applicant in the I. A. filed in Civil Appeal No. 7948 of2004, made serious allegations against the Chief Justice of India. Notice was issued to him to show cause as to why proceedings for contempt be not initiated against him.

In reply, the contemnor made further allegations against the Judges, which the Court found to be more contemptuous. When the matter came to be heard, the contemnor appeared in-person and stated that he had also made similar allegations against certain Judges of the Guwahati High Court which initiated C'ontempt proceedings against him but the High Court, however, ' to punish for contempt of Court. The fires which it kindles must constitute --. ,/ an imminent, not merely a likely, threat to the administration ofjustice. The stream of administration ofjustice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters ofjudicial firmament are, therefore required to be well ~en care ofto maintain the sublimity ofCourt's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. To similar effect were the observations of Lord Morris in Attorney General v.

Times Newspapers, (1974) ) AC 273 at page 302. It was observed that when unjustifiable interference is suppressed it is not because those charged with the responsibilities of administration ofjustice are concerned for their own dignity, it is because the very structure of ordered life is at risk if the recognised Courts of the Land are so flouted and their authority wanes and is supplanted. 13. There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. No Court can Claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves ,• to be in possession of all truth to hold that wherever others differ from them are in error. No one is more conscious of his limitations and fallibility than a Judge. But because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others.

While fair arid temperate criticism of the Court even if strong, may not be actionable, but attributing improper motives or tending to bring Judges' or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must be and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification ofthe institution ofCourt, administration ofjustice and the instruments through which the administration acts, should take heed for they will act at their own peril. To similar effect were the observations of Hidayatullah, C. J. , (as the learned judge was then) in R. C. Cooper v. Union ofIndia, AIR (1970) SC 1318). 14. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of Court. We shall now refer to a few.

Lord Russel of Killowen, L. C. J, has laid down 4 ~ in Reg v. Gray. (1900) 2 QB 36 at 40 as follows: f f "Any act done or writing published calculated to bring a Court or Judge of the Court into contempt, or to lower his authority, is """ contempt of Court. " 15. It cannot be denied that judgments are open to criticisms and in the said case it was observed : "Judges and Courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no Court could or would treat that as contempt ' of Court''. Indeed, Section 5 of the Act now provides that a person shall not be guilty of contempt of Court for publishing any fair comment on the merits of any case which has been heard and finally decided.

But, if such a defence is taken, it is always open to test whether the publication alleged to be offending was by way of fair comment on the merits of the case or was personal scurrilous abuse of a Judge as a Judge, for abuse of a Judge or a Court or attacks on the personal character of a Judge are clearly punishable contempt. As stated in para 2 at page 21 ofVolume-9 ofHalsbury's Laws of England; Fourth Edition, ''The punishment is inflicted. not for the purpos·e of ~ protecting either the Court as a whole or the individual Judges of the I Court from a repetition of the attack, but of protecting the public, and specially those who either voluntarily or by compulsion are subject to the jurisdiction ofthe Court, from the mischiefthey will incur ifthe authority of the tribunal is undermined or impaired. " 16. Th~ view was echoed by this Court in Re. D. C. Saxena v.

CJ/, AIR (1996) SC 2481 In the same volume of Halsbury's Laws of England at para 27 it is stated thus: "Any act done or writing published which is calculated to bring a Court or a Judge into contempt or to lower its authority or to interfere \ with the due course ofjustice or the lawful process of the Court, is a contempt of Court. " 17. The above proposition has been approved and followed by Lord Atkin in Andrew Paul Terence Ambrad v. The Attorney General of Trinidad and Tobago, AIR (1936) PC 141. It was observed as follows: ''No wrong is committed by any member of the public who exercised the ordinary right of criticism in good faith in private or public the ... -j public act done in the seat of justice. The path of criticism is public way, the wrong headed are permitted to err therein, provided that members of the public abstain from·imputing improper motives to those taking part in the administration of justice and are genuinely .

exercising a right of criticism and not acting in malice or attempting to impart the administration of Justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men": Lord Justice Donovan in Attorney General v. Butterworth, (1963) I QB 696 after making reference to Req. v. Odham 's Press Ltd ex parte A. G. , (1957) 1 QB 73 said: "whether or not there was an intention to interfere with the administration ofjustice is relevant to penalty not to quit". This makes it clear that an intention to interfere with the proper administration of justice is an essential ingredient of the offence of contempt of court and it is enough if the action complained of is inherently likely so to interfere. In Morris v. Crown Office, [1970] 1 All E. R. 1079 page 1081, Lord Denning M. R. said: that the course of justice must not be deflected or interfered with.

Those who do it strike at the very foundations of our society. In the same case, Lord Justice Solmon spoke: 'The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring ... t that the administration ofjustice shall not be obstructed or prevented. " l \ Frank Further, J. in Offutt v. U. S. , (1954) 348 U. S. 11 expressed his view as follows: "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage. " In Jennison v. Baker. [1972] 1 All E. R. 997 at page 1006 it is stated: "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. " 18. Chinappa Reddy, J. speaking for the Bench in Advocate General, State ofBihar v. Madhya Pradesh Khair Industries, [1980] 3 SCC 311 citing those two decisions in the cases of Offutt . and Jennison (supra) stated thus: ".....

It may be necessary to punish as a contempt a cause of conduct which abuses and makes a mockery of the judicial process and which ... thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and vital stake in the effective and orderly administration of justice, because unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest ofthe public in the due administration ofjustice and, so, it is entruste~ with the power to commit for contempt ofCourt not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest but to protect and t~ vindicate the right of the public and the administration ofjustice shall' not be prevented, prejudiced, obstructed or interfered with. " 19. Krishna Iyer, J.

in his separate judgment In Re. S. Mulgaokar, [1978)' 3 sec 339 while giving broad guidelines in taking punitive action in the matter of contempt of Court has stated: "..... lfthe Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong ann of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream" 20. In the case of Brahma Prakash Sharma and Ors. v.

The State of Uttar Pradesh, AIR (1954) SC 10 this Court after referring to various decisions of the foreign countries as well ~s of the Privy Council stated thus: "It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court's administration ofjustice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affinnative that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely or tends in any way to interfere with the proper administration of law. " 21. It may be noted here that in the illustrated case Re: S. Mulgaokar 's .

, case (supra) it was held that the judiciary cannot be immune from criticism. But, when such criticism is based on obvious distortion or gross mis-statement and make in a manner which seems designed to lower respect of the judiciary and destroy public confidence in it, it cannot be ignored. 22. Though certain imputations against the Judge may be only libelous · against that particular individual, it may at times amount to contempt also depending upon the gravity of the allegations. In Brahma Prakash Sharma 's case (supra) this Court held that a defamatory attack on a Judge may be a libel so far as the judge is concerned and it would be open to him to proceed against the libellor in a proper action if he so chooses. If, however, the publication ofthe disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such Court, it can be punished separately as contempt. The same view has been taken in Perspective Publications (P) Ltd v.

The State of Maharashtra. AIR (1971) SC 221 and CK. DaphtaryandOrs. v. OP. Gupta andOrs. , AIR (1971) SC 1132. Therefore, apart from the fact that a particular statement is libelous, it can constitute criminal contempt if the imputation is such that the same is capable of lowering the authority of the Court. The gravity of the aforesaid statement is that the same would scandalize the court. 23. The right to criticize an opinion of a court, to take issue with it upon its conclusions as to a legal proposition, or question its conception of the farts, so long as such criticisms are made in good faith and are in ordinarily decent and respectful language and are not designed to willfully or maliciously misrepresent the position of the Court, or tend to bring it into disrespect, or lessen the respect due to the authority to which a Court is entitled, cannot be questioned.

The right of free speech is one of the greatest guarantee to liberty in a free country like ours, even though that right is frequently and in many instances 'tmtrageously abused. If any considerable portion of a community is led to believe that either because of gross ignorance of the law or because of a wrong reason, it· cannot rely upon the courts to administer justice that portion of the community, upon some occasion, is very likely to come to the conclusion that it is better not to take any chances on the courts failing to do their duty. 24. Judiciary is the bed rock and handmaid ofdemocracy. Ifpeople lose faith in justice parted by a Court of law, the entire democratic set up would crumble down. In this background, observations of Lord Denning M. R. in Metropolitan Properties Ltd. v. Lennon. [1968] 3 All E. R. 304 are relevant: "Justice must be rooted in confidence, and confidence is destroyed when right minded people go away thinking, the Judge is based. " 25.

Considered in the light of the aforesaid position in law, a bare reading of the statements makes it clear that those amount to a scurrilous r '-' attack on the integrity, honesty and judicial competence and impartiality of judges. It is offensive and intimidating. The contemnor by making such scandalising statements and invective remarks has interfered and seriously shaken the system ofadministration ofjustice by bringing it down to disrespect and disrepute. It impairs confidence of the people in the Court. Once door is opened to this kind ofallegations, aspersions and imputations, it may provide a handle to the disgruntled litigants to malign the Judges, leading to character _4 assassination. A good name is better than good riches. Immediately comes to one's mind Shakespeare's Othello, Act II, Scene 3, 167:- "Good name in man and woman, dear my Lord is the immediate jewel of their souls; who steals my purse, steals trash; its something,.

nothing; 'T was mine, its his, and has been slate to thousands; But he that filches from me my good name, Robs me of that which not enriches him And makes me poor indeed. " ... I 26. Majesty of Law continues to hold its head high notwithstanding such scurrilous attacks made by persons who feel the law Courts will absorb ~nything and every thing, including attacks on their honesty, integrity and impartiality. But it has to be borne in mind that such divinity and magnanimity is not its weakness but its strength. It generally ignores irresponsible statements which are anything but legitimate criticism. It is to be noted that what is permissible is legitimate criticism and not illegitimate insinuation. No Court can brook with equanimity something which may have tendency to interfere with the administration of justice. Some people find judiciary a soft target because it has neither the power of the purse nor the sword, which other wings of democracy possess.

It needs no reiteration that on judiciary millions pin their hopes, for protecting their life, liberty, property and the like. Judges do not have an easy job. They repeatedly do what rest of us (the people) see! Q to avoid, make decisions, said David Pannick in his book "Judges". Judges are mere mortals, but they are asked to perform a function which is truly I divine. 27. What is contempt ofCourt has been stated in lucid terms by Oswal4 in Classic "Book on Contempt of Court". It is said: -i "To speak generally, contempt of court may be said to be consfaute4 by any conduct that tends to bring the authority and demonstration of law into disrespect and disregard or to interfere with or prejudice parties, litigant or their witnesses during the litigation.

" "Contempt in the legal acceptance of the term, primarily signifies disrespect to that which is entitled to legal regard, but as a wrong purely moral or affecting an object not possessing a legal status, it has in the eye of the law no existence. In its origin all legal contempt will be found to consist in an offence more or less direct against the ... sovereign himself as the fountainhead of law and justice or against his palace where justice was administered. This clearly appears from old cases. " 28. Lord Diplock, speaking for the Judicial Committee in Chokolingo v. Attorney General ofTrinidad and Tobago, [1981] I All E. R.

244, summarized the position thus: "Scandalising the Court is a convenient way of describing a publication which, although it does not relate to any specific case either pa11 of pending or any specific Judge, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the Courts and public confidence in the administration ofjustice. Thus, before coming to the cvnclusion as to whether or not the publication amounts to a contempt, what will have to be seen is, whether the criticism is fair, temperate and made in good faith or whether it is something directed to the personal character of a Judge or to the impartiality of a Judge or court. A finding, one way of the other, will determine whether or nor the act complained of amounted to cdntempt. " 29. Mahajan, Jin Aswini Kumar Chose v. Arabinda Bose.

AIR (1953) SC 75, observed as follows:- I "No objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the Judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court..... It is obvious that ifan impression is created in the minds of the public that the Judges in the highest Court of the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration ofjustice is bound to be undermined and no greater mischief than that can possibly be imagined..... We would like to observe that it is not the practice of this Court to issue HARIDAS DAS v. USHA RANI BANIK [PASAYAT, J.

] 379 such rules except in very grave and serious cases and it is never oversensitive to public criticism; but when there is danger ofgrave mischief being done in the matter ofadministration ofjustice, the animadversion cannot be ignored and viewed with placid equanimity..... " 30. There can be no quarrel with the proposition that anyone who intends to tarnish the image of judiciary should not be allowed to go unpunished. By attacking the reputation of Judges, the ultimate victim is the institution. The day the consumers ofjustice loose faith in the institution that . \ would be the darkest day for mankind. The importance ofjudiciary needs no reiteration. 31. When the background facts highlighted above are considered in the background of the principles set out above, the inevitable conclusion is that I the contemnor deserves no sympathy.

In fact, the lenient approach of the Guwahati High Court seems to have encouraged him to make statements on oath tarnishing the image of the Judges of the highest judiciary. His apol9gy seems to be not genuine. This is more so because he wanted to justify the statements made in para 4. 32. Therefore, we find the contemnor guilty ofcontempt. He is senten~ed to undergo imprisonment for a period of two months. He shall be taken into custody and sent to Tihar Jail, New Delhi, forthwith to serve the sentence ~ar~ , 33. The contempt proceedings stand disposed of. R. P. Contempt proceedings disposed of.