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Petitioner: P.N. DUDA VS Respondent: P. SHIV SHANKER And Other
Court Name: Supreme Court of India Judge(s): Sabyasachi Mukharji, S. Ranganathan Title: P.N. DUDA vs P. SHIV SHANKER And Other Case No.: Criminal Miscellaneous Petition No.260 of 1988 Date of Judgment:1988-04-15 Reported As: 1989 MLD 2543 Result: Petition dismissed
JUDGMENT
JUDGMENT SABYASACHI MUKHARJI, J.--By an order dated 15th March, 1988, we declined in this matter to initiate contempt proceedings under section 15(1)(a) and (b) of the Contempt of Courts Act, 1971 (hereinafter called `the Act') read with Rule 3(a), (b) and (c) of the Supreme Court contempt of Court Rules, 1975. We also on that date disposed of the application for intervention filed by Shri R.N. Trivedi- We stated that we will indicate our reasons by a separate judgment. We do so herein. 2. Shri P. Shiv Shanker who at the relevant time was the Hon'ble Minister of Law, Justice and Company Affairs delivered a speech before a meeting of the Bar Council of Hyderabad on 28th November, 1987. Shri P.N. Dude, who is an Advocate practising in the Supreme Court, has drawn our attention to that speech. According to him by that speech respondent No.1, Shri P. Shiv Shanker has made statements against the Supreme Court which are derogatory to the dignity of this Court, attributing this Court with partiality towards economically affluent sections of the people and has used language which is extremely intemperate, undignified, and unbecoming of a person of his stature and position. It was stated that Shri P. Shiv Shanker formerly held the office of a Judge of the High Court before he resigned and took to politics. 3. We have read the entire speech. It is not necessary to set out the entire speech. The relevant portions of the said speech for the present purpose are as follows: "(a)The Supreme Court composed of the element from the elite class and their unconcealed sympathy for the haves i.e. The Zamindars. As a result, they interpreted the word `compensation' in Article 31 contrary to the spirit and the intendment of the constitution and ruled the compensation must represent the price which a willing seller is prepared to accept from a willing buyer. The entire programme of Zamindari abolition suffered a setback. The Constitution had to be amended by the
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1st, 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with little or no help. Ultimately, this rigid reactionary and traditional outlook of property, led to the abolition of property as a fundamental right." 4.He inter alia further observed: "(b)Holmes Alexander in his column entitled `9 Men of Terror Squad' made a frontal attack on the functions of the U.S. Supreme Court. It makes an interesting reading: `Now can you tell what that black-robed elites are going to do next. Spring more criminals; abolish more protections. Throw down more ultras. Rewrite more laws. Chew more clauses out of the Constitution. May be, as a former Vice-President once said, the American people are too dumb to understand, but I would bet that the outcropping of evidence at the top in testimony before the US Senate says something about the swelling concern among the people themselves. Should we not ask how true Holmes Alexander was in the Indian context." 5.The Minister further stated: "(c)" Twenty years of valuable time was lost in this confrontation presented by the Judiciary in introducing and implementing basic agrarian reforms for removal of poverty what is the ultimate result. Meanwhile even the political will seems to have given way and the resultant effect is the improper and ineffective implementation of the land reform laws by the executive and the judiciary supplementing and complementing each other. 6.It was further stated by him: "(d)The Maharajas and the Rajas were anachronistic independent India. They had to be removed and yet the conservative element in the ruling" party gave them privy purses. When the privy purses were abolished, the Supreme Court, contrary to the whole national upsurge, held in favour of the Maharajas. (e)Madhadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper's case AIR 1970 SC 564, Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court." 7. Shri P.N. Duda brought the newspaper version of the said speech to our notice. He further stated that the said speech contains slander which was cast on this Court, both in respect of the Judges and its working. It was alleged that Shri P. Shiv Shanker has done this to malign this Court. Shri Duda further stated that he read the speech in the News Times and he had approached the learned Attorney-General of India and the learned Solicitor-General of India to give their consent for initiating contempt proceedings. In those circumstances, the petitioner claimed that he also made the Editor and publisher of the newspaper--News Times as one of the respondents. The learned Attorney-General and the learned Solicitor-General have declined to deal with this prayer of the petitioner for the reasons stated in the letter which is an annexure to this petition. We shall refer to that part of the letter later. In those circumstances an application for initiation of contempt entitled "Information under section 15(1)(a) and (b) of the Act read with Explanation (1) and Rule 3(a), (b), and (c) of Contempt of Supreme Court Rules, 1975" in the matter of said Shri P.N. Duda was made wherein Shri P. Shiv Shanker, the learned Attorney-General, the learned Solicitor-General and the Editor of News Times were made parties. The application having been moved before this Court on 10th February, 1988 we directed issue of notice returnable on 15th March, 1988 to the respondents, namely, Shri P. Shiv Shanker, Shri K. Parasaran, Shri Milon Banerji and Shri Ramji Rao, Editor News Times confined only to the question to consider whether action, if any, need be taken on the said petition of the petitioner. We requested the First Additional Solicitor-General, Shri B. Datta to appear
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as Amicus Curiae to assist the Court. On 11th February, 1988 Shri Duda mentioned the matter and this Court clarified that the respondents need not appear in the first instance in person. In the meantime, pursuant to the notice Shri P. Shiv Shanker has filed an affidavit on 8th March, 1988 in which he has stated that he had delivered a speech on the Silver Jubilee Celebration of the Bar Council of Andhra Pradesh at Hyderabad where the audience consisted of Judges and laywers. On that occasion he had made a speech on the subject of accountability of the Legislature, the Executive and the Judiciary. He further stated that during the speech, he made comments on the accountability of the three organs and theoretical implications thereof. The Minister has further reiterated with utmost emphasis at his command that he intended no disrespect to any of the institutions or its functionaries much less this Hon'ble Court. He further stated that he has high regard for this Hon'ble Court. He further stated that the contempt petition is not maintainable in law without the consent of the Attorney General or the Solicitor-General and it was liable to be dismissed. In the meantime an application has been filed by Shri R.N. Trivedi who is an Advocate of 25 years, standing at the Bar in which he has claimed the right to be impleaded as a party. He has stated in the petition that the learned Attorney-General and the Solicitor-General should not have been made parties to the contempt petition and the alleged non-exercise of jurisdiction by the Attorney-General and the Solicitor-General did not constitute contempt within the meaning of section 2(c) of the Act. The remedy, if any, in respect of the alleged non-exercise of jurisdiction and power would lie somewhere else, according to Shri Trivedi Shri B. Datta at our request appeared as Amicus Curiae and made his submission. We express our gratitude to him. 8. Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor-General as contended by Dr. Chitale on behalf of Shri Shiv Shanker and the question whether the Attorney-General and the Solicitor-General could be made parties to the contempt application and whether their action or inaction was justiciable at all in any proceeding and if so in what proceedings, it is necessary to decide the basic question whether the speech made by Shri P. Shiv Shanker and published throughout the length and breadth of the country amounted to contempt of this Court or, in other words whether the speech has the effect of bringing this Court into disrepute. "Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men,"--- Said Lord Atkin in Ambard v. Attorney-General for Trinidad and Tobago, 1936 AC 322 at p.335: AIR 1936 PC 141. Administration of Justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. This the Judges must do in the light given to them to determine what is right. And again as has been said in the famous speech of Abraham Lincoln in 1865 "With malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right. "Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented. The contempt of Court proceedings arise out of that attempt. Judgments can be criticised, the motives of the Judges need not be attributed, it brings the administration of justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas criticism about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how Courts should approach the powers vested in them as Judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer. 9. In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar (1971) 1 SCR 697: (AIR 1970 SC 2015) this Court had to deal with this jurisdiction in respect of Mr. Namboodiripad who at the relevant
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time was the Chief Minister of Kerala. He had held a Press conference in November 1976 and made various critical remarks relating to the judiciary which inter alia was described by him as "an instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "Instrictively" favouring the rich against the poor. He also stated that as part of the ruling classes the judiciary "works against workers, pearats and other sections of the working classes" and "the law and the system of judiciary essentially served the exploiting classes". (emphasis supplied). It was found that these remarks were reported in the newspapers and thereafter proceedings commenced in the High Court of Kerala. The appellant Shri Namboodiripad was called upon to show cause why he should not be committed for contempt. In his affidavit the appellant stated that the reports were "substantially correct", though incomplete in some respects. The appellant further claimed that his observations did no more than give expression to the Marxist philosophy and what was contained in the programme of the Communist Party of India. By a majority judgment of the High Court the appellant was convicted for contempt of Court and fined Rs.1,000, or simple imprisonment for one month. He moved this Court by an appeal. He contended that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and. Expression under Article 19 (1) (a) of the Constitution and that the intention of the appellant in making his remarks at the Press conference should be examined in the light of his political views which he was at liberty to put before the people. He sought to justify the remarks as -an exposition of his ideology which he claimed was based on the teaching of Marx and Engels and on this ground claimed protection of the first clause of Article 19 (1) of the Constitution. The conviction of the appellant was upheld by this Court. It was observed by Hidayatullah, CJ, speaking for the Court that the law punishes not only acts which do not in fact interfere with the Courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administration of justice, there was no doubt that the appellant was guilty of contempt of Court. The Chief Justice observed whether the appellant misunderstood the teachings of Marx and Engels or deliberately distorted them was not to much purposes. The likely effect of his words must be seen and they clearly had the effect of lowering the prestige of judges and Courts in the eyes of the people (emphasis supplied). That he did not intend any such result may be a matter for consideration m the sentence to be imposed on him but could not serve as a justification. This Court further held that the appellant had misguided himself about the true teachings of Marx, Engels and Lenin. According to the Chief Justice he had misunderstood the attack by them on State and the laws as involving an attack on the judiciary. No doubt the Courts, while upholding the laws and enforcing them, do give support to the State but they do not do so out of any impure motives. To charge the judiciary as an instrument of oppression, the Judges as guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the `poor is to draw a very distored and poor picture of the judiciary. It was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with and distrus of all judicial decisions. According to the Chief Justice it weakened the authority of law and law Courts (emphasis supplied). It was further held that while the spirit underlying Article 19 (1) (a), must have due play, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Court the power to punish for contempt of themselves. Although Article 19(1)(a) guaranteed complete freedom of speech and expression, it also made an exception in respect of contempt of Court. While the right is essential to a free society, the Constitution had itself imposed restrictions in relation to contempt of Court and it could not therefore be said that the right abolished the law of contempt or that attack upon judges and courts would be condoned. We are not concerned here whether the appellant in that case properly understood the Communist
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manifesto or the views of the Marx, Engels and Lenin. While respectfully accepting the ratio and the observations of the learned Chief Justice made in that decision we must recognise that times and clime have changed in the last two decades. There have been tremendous erosions of many values. In this connection it is interesting to note that little over sixty years ago, on 1st March, 1928, Justice Holmes wrote to Prof. Harold Laski:- " .....You amaze me by saying, if I understand you, that criticism of an opinion or judgment after it has been rendered, may make a man liable for contempt. I thought that notion was left for some of our middle western States. I must try to get the book and the decision ....(Holmes--Laski Letters Vo1.I 1916-1925 Page 1032). 10. In the instant case we have examined the entire speech. In the speech Shri P. Shiv Shanker has examined the class composition of the Supreme Court. His view was that the class composition on any instrument indicates its pre--disposition, its prejudices. This is inevitable. Justice Holmes in his dissenting opinion in Joseph Lochner v. People of the State of New York (1904) 49 LE 45: 198 US 937 had observed "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise:" That intuition more subtle than major premise is the pride and the prejudice of a human instrument of a judge through which objectively the Judge seeks to administer justice according to law. So, therefore, in a study of accountability if class composition of the people manning the institution is analysed we forewarn ourselves of certain inclination it cannot be said that an expression or view or propagation of that view hampers the dignity of the Courts or inpairs the administration of justice. 11. The question of contempt of Court by newspaper article criticising the Judges of the Court came up for consideration in the case of Re: S. Mulgaokar (1978) 3 SCR 162: AIR 1978 SC 727. In order to appreciate the controversy m this case it has to be stated that the issue dated 13th December, 1977, of the Indian Express published a news item that the High Courts had reacted very strongly to the suggestion of introducing a code of judicial ethics and propriety and that "so adverse has been the criticism that the Supreme Court Judges, some of whom had prepared the draft code, have disowned it:" In its issue dated December 21,1977 an article entitled "behaving like a Judge" was published which inter alia stated that the Supreme Court of India was "packed" by Mrs. Indira Gandhi "with plaint and submissive Judges except for a few". It was further stated that the suggestion that a code of ethics should b- formulated by Judges or themselves was "so utterly inimical to the independence of the judiciary, violative of the Constitutional safeguards in that respect and offensive to the self-respect of the Judges as to make one wonder how it was conceived in the first place." A notice had been issued to the Editor-in-Chief of the Newspaper to show-cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items. 12. It was observed by Chief Justice Beg in that decision that national interest required that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. This should be a part of national ethics. The Comments about Judges of the Supreme Court suggesting that they lack moral courage to the extent of having "disowned" what they had done or in other words, to the extent of uttering what was untrue, at least verge on contempt. None could say that such suggestions would not make Judges of this Court look ridiculous or even unworthy, in the estimation of the public, of the very high office they hold if they could so easily "disown" what they had done after having really done it. It was reiterated that the judiciary cannot be immune from criticism. But, when that criticism was based on obvious distortion or gross mis-statements and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it could not be ignored. A decision on the question whether the discretion to take action for contempt of Court should be exercised must depend on the totality of facts and circumstances of the case. The Chief
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Justice agreed with the other two learned Judges in that decision that in those facts the proceedings should be dropped. Krishna Iyer, J. In his judgment observed that the Court should act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the Judges, where the attack was calculated to obstruct or destroy the judicial process. The court must harmonise the constitutional values of free criticism, and the need for a fearless curial process and its presiding functionary, the judge. To criticise a Judge fairly albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it. The Court must avoid confusion between personal protection of a libelied judge and prevention of obstruction of public justice and the community's confidence m that great process. The former is not contempt but latter is, although overlapping spaces abound. The fourth functional canon is that the Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the Court, including the highest Court. The fifth normative guideline for the Judges to observe is not to be hypersensitive, even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, and the sixth consideration is that if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its sources and stream. 13. It is well to remember the observations of justice Brennan of U.S. Supreme Court (though made in the context of law of libel) in New York Times Co. v. L.B. Sullivan (1964) 376 U S 254 that it is a prized privilege to speak one's mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion. 14. Lord Denning in Regina v. Commr. Of Police of the Metropolis, Ex parte Blackburn (1968) 2 W L R 1204 observed as follows: "Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parlaiment or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a Court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. 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. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter m hand. Silence is not an option when things are ill done." 15. The aforesaid observations were made in respect of an article written by Mr. Quintin Hogg in "Punch" (as later Lord Hailsham then was) more or less in a critical language as the Hon'ble Minister's speech in the instant case. 16. Gajendragadkar, CJ. In Special Reference No.1 of 1964 (1965) 1 SCR 413: AIR 1965 SC 745 at p. 791 observed as follows: "We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger of irritation would not help to sustain the dignity or status of the Court, but, may
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sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to'deserve respect from the public-at-large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct." 17. It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar's wife must be above suspicion per Krishna Iyer, J. In Baradakanta Mishra v. Registrar of Orissa High Court, (1974) 1 SCC 374 AIR 1974 SC…
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