1. This is a petition filed by a practicing advocate of this Court invoking the jurisdiction of this Court under Section 15 of the Contempt of Courts Act for taking action against respondent No. 1. hereinafter referred to as "the contemner". The contemner is the editor of a Marathi daily newspaper published from Bombay, called 'Loksatta'. It is said to have the largest circulation among the Marathi newspapers. Respondent No. 2 is a limited company which owns the newspaper of which the contemner is the editor. The State of Mahrarashtra has been joined as respondent No. 3 in the petition.
2. Apart from being the editor of the newspaper, the contemner also writes a column in the said newspaper under heading "Chaupher". In the issue of Loksatta dated 7th of February 1986, the contemner wrote and published an article with the heading "Who will stop the downfall of the High Court ?" In this article, there are statements which prima facie amounted to contempt of Court. The petitioner filed the present petition, bringing to the notice of this Court the article published on 7th of February 1986 and prayed that on the basis of the petition filed by him, cognizance may be taken by this Court suo motu and action under the Contempt of Courts Act may be taken against the contemner and respondent No. 2.
3. This Court, by its order dated 17th of February 1986, examined the article and gave the opinion that not all that was written in the article amounted to contempt of Court. but there were three passages, which were highly objectionable and a case existed for issuing notice to respondents Nos. 1 and 2 to show cause why they should not he punished for contempt of this Court and also for contempt of the Motor Accidents Claims Tribunal. A copy of the order alone with the rule was served upon both the respondents.
4. The first passage which, according to the notice served upon respondents Nos. 1 and 2, amounted to contempt of this Court is as follows :-
"Good judges and advocates are immensely bothered by the chaos that has been created by a lady advocate in the High Court by her seductive weapon. One advocate was conducting a case. The judge gave the judgment in his favour as it was justified. The opposite party decided to rectify their mistake. The party approached the lady advocate. Surprisingly they managed to bring the case for revision before the same judge. The judge who gave the first judgment passed just opposite judgment. The advocate in whose favour the first judgment was passed, said on the face of the judge that he had reversed his own judgment by seeing the face of the (lady) advocate. It would have been better if he would have referred to the point that made him to pass earlier judgment. Half the prestige of the Bombay High Court was lost on that day."
This passage was obviously intended to tell the readers of the newspaper and the column written by the contemner that there is a judge in the High Court at Bombay who is amenable to the seductive influence of a lady advocate and he passes orders in her favour obviously not on merits. This is criminal contempt of Court because it scandalises or tends to scandalise a judge of this Court and therefore this Court itself.
5. The second passage which was prima facie found to be amounting to contempt of Court is as follows :
"One High Court judge is deaf. When he does not want of listen to the Advocate, he just removes the hearing aid."
By this, the contemner has suggested that a particular judge decides cases without hearing the advocates. This is also an insinuation which prima facie scandalises or tends to scandalise a judge of Court and, therefore it scandalises or tends to scandalise the High Court itself.
6. The third passage in the article which was found to be objectionable is as follows :-
"Bombay Motor Accidents Claims Tribunal is nothing but plain racket. The court-office is situated on the fifth floor of one of the buildings in the Fort area. If lift is out of order, then the handicapped people, victims of accidents climb up by the staircase. A number of advocates told me that the judges and advocates are in league. The accident victims receive only one-third amount of compensation and the rest is swallowed by the Court."
This is a statement which suggests that the members of the Motor Accidents Claims Tribunal are hand in glove with the advocates practising in the Court and the members of the Tribunal illegally and obviously dishonestly take one-third of the compensation, which is awarded by the said members of the claimants before them. There was no difficulty in holding that this was a statement which prima facie scandalises the Motor Accidents Claims Tribunal which is a Court.
7. In response to the rule, the contemner has engaged an advocate and has also filed an affidavit-in-reply. Respondent No. 2 has filed an affidavit-in-reply through the Executive Director, one Vivek Khaitan. of the Indian Express Newspapers Private Ltd. Respondent No. 2, however, has not engaged any advocate and has not been represented before us at the time of the hearing of this petition.
8. Mr. Jethmalani the learned Advocate appearing for the contemner, has invited us to drop the present Proceedings altogether for various reasons, In the first place, it was urged by him that the article in which the offending passages are found was published more than three and a half years ago and it is not necessary at this late stage to delve into this controversy and to decide the merits or otherwise of the article or the case against the contemner. The spirit of Section 20 of the Contempt of Courts Act, according to him, suggests that after the expiry of considerable period of time, no notice should be taken of the actions which are alleged to amount to contempt of Court. It is not possible for us to accept this argument because there is nothing in the Contempt of Courts Act, either in its letter or in its spirit, which could suggest that an act amounting to contempt of Court should not be taken cognizance of at all merely because some time has passed after the commission of the said act. What is. provided in Section 20 of the Contempt of Courts Act is that no Court shall initiate any proceedings for contempt after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. The impugned article was published on 7th of February. 1986. The petition inviting this Court to take suo motu action was filed on 7th of February 1986, and this Court took cognizance of the same and issued rule on 17th of February, 1986. The cognizance of the offending passages has been taken expeditiously.
9. It is true that for some reasons the petition itself has not come up for final hearing for a long time. For the sake of record, it should be stated that the petition came up for final hearing before one Bench on 14th of March 1986 and on a motion made on behalf of the contemner, it was adjourned to 7th of April, 1986. However, on 4th of April 1986, the Bench directed that the petition should not be placed before a Bench of which one of the members of the Bench is a member. Subsequently, the matter was placed before two other Benches and it is on record that four other Judges also directed that this petition shall not be placed before the Bench of which they were members. The constitution of the Benches by the Hon'ble the Chief Justice is not made with reference to any particular matter. Probably. the bench which ought to have dealt with this criminal contempt petition always consisted of one or the other of the five judges who had directed that the petition should not be placed before them. It is in these circumstances that the petition has not reached the state of final hearing till now.
10. It was thought by Mr. Jethmalani that the fact that five Judges have directed that the petition should not be placed before them indicated that they thought that no action need be taken against the contemner. It must be emphatically stated that such an inference is wholly unwarranted. The reason as to why a particular Judge directs that a particular matter should not be placed before him can never be inquired into. No inference of whatever kind can be drawn from the fact that a particular Judge has given such a direction.
11. It was then argued by Mr. Jethmalani that the offending passages formed part of a bigger article several parts of which have been found to be innocent by this Court itself when this Court issued rule on this petition. The offending passages should be read as parts of the entire article and if it is so done, it is clear, says Mr. Jethmalanit, that the object of the article was to highlight what the author of the article regarded as defects in the working of the judicial system and in the working of the High Court and to suggest remedies. The title of the article itself shows that the author pointed out that there is a downfall of the High Court for which the advocates and the Judes are responsible and the article reflects the concern of the author with the state of affairs prevailing in the judiciary and in particular in the High Court. It is only by way of illustrating this general picture of the judiciary that the author has given certain instances. In this he was actuated by the best of the motives. The article as a whole does not scandalise or does not tend to scandalise this Court or any other Court. The article is written by way of fair commentary on the state of affairs prevailing in the judiciary with the object of improving that state of affairs.
12. The article is in Marathi and both of us being acquainted with the language, we have carefully read with same. We are not in agreement with Mr. Jethmalani that it is only the concern for the health of the judiciary that is displayed in this articles. On the other hand, most of the statements in this article are by way of sensationalism. though by the order issuing rule on this petition it has been held that they may not amount to contempt of court. The professed object. which is undoubtedly expressed in the opening paragraph of the article, is not the intended result of the publication of the material to be found in the article. To suggest that a particular Judge of the High Court does not give judgment on the basis of the merits of the case before him but decides the case being influenced by the charm of a particular lady advocate is nothing but to scandalise this Court. It should be noted that the contemner did not at least at the time of the' publication of the article show enough courage to name the Judge or the lady advocate. This had the result of casting a cloud over practically every Judge of the High Court and every lady advocate practising in this Court. In law, scandalising a Judge of a particular Court amounts to scandalising that Court itself. It must also be noted that the newspaper in which the article was published is not meant for only lawyers; probably lawyers form a very small percentage of the readership of the said newspaper. It is read by the general public in whose minds the effect of the allegation made by the contemner can very well be imagined. The general members of the public must undoubtedly be, wondering as to how the High Court can meet out justice when Judges of that Court are swayed by the charm of a lady advocate.
13. Similarly, the allegations against the members of the Motor Accidents Claims Tribunal are also of such a nature that they scandlise all the members of the said Tribunal. To say that one-third of the compensation amount awarded by the members of the Tribunal not only does not reach the claimants but is swallowed by the members of the Tribunal itself is a statement which holds the members of the Tribunal to ridicule in the eyes of the public.
14. At this stage, it may be stated that the contemner has not, in his affidavit-in-reply, offered any explanation or an apology for what he has written. On the other hand, he says in paragraph 5 of his affidavit as follows :-
"With reference to count No. 1 of the alleged contempt. I submit that my article draws public attention to a phenomenon in the Bombay High Court which is noticed by hundreds of lawyers and litigants is the subject matter of adverse comment in many a respectable quarter. I am refraining at this moment from identiying the Judge as well as the lady involved, because I do not want the reputation of the High Court as a whole to suffer by reason of the conduct of one of its Judge. I, however, do wish to express my surprise that this has not come to the notice of hon'ble the Chief Justice of this Court or other higher judicial authorities."
15. By repeating this statement, in our opinion, the contemner has compounded the offence. It is surprising that the editor of a newspaper which claims the largest readership amount the Marathi newspapers, should repeat such an allegation in such a vague manner in reply to a charge of contempt of Court and then suggest that this scandal should have been taken note of by the Chief Justice of this Court.
16. In relation to the contempt of the Motor Accidents Claims Tribunal, the contemner says in paragraph 7 of his affidavit that whatever he has stated was with the desire to clean up the working of the Motor Accidents Claims Tribunal which is supposed to cater to the needs and the rights of the unfortunate victims of criminal negligence of others, and that a portion of the article in question is a fair comment on the state of affairs as observed by him and others. The major malpractices which had come to his notice and which he was in a position to prove, if necessary, have been enumerated by him in paragraph 7 of his affidavit-in-reply.
17. It has not been mentioned in this paragraph that members of the Tribunal or any member of the Tribunal take one-third or any part of the compensation awarded by the Tribunal. However, in paragraph 8 of his affidavit-in-reply, the contemner submits :-
"........... That if any words used in the article convey the impression that the members of the Tribunal have actually shared the compensation payable to victims, such was not my intention. What I intended to convey was that only a small part of the compensation reaches the actual victim, the rest is swallowed up by the various components that constitute the institution called the court in general."
18. We refuse to accept the meaning suggested by the contemner to the words which he had actually used in the offending passage relating to the Mator Accidents Claims Tribunal.
19. To the affidavit-in-reply, the contemner has annexed copies of two documents. One is a letter dated 3rd of February, 1986 written by a member of the Maharashtra Bar Council to the Secretary of the Bar Council, suggesting an item for the agenda for the next meeting of the Bar Council. In that letter, the member pointed out that the advocates practising before the Motor Accidents Claims Tribunal are indulging in several malpractices, one of them being the practice of charging fees on percentage basis. The second document is a resolution. being resolution No. 234/1984, passed by the Bar Council on 10th of November 1984, by which it sought to bring to the notice of the public that it was not lawful for an advocate to ask for fees on percentage basis. The Bar Council also clarified that it was an illegal practice and that if any attempt at resorting to such practice was brought to the notice of the Bar Council, appropriate action would be taken. Indeed, the Bar Council authorised release of the text of the resolution to the press so that the members of the public at large would be made aware of the illegality of the practice of the advocates charging fees on percentage basis.
20. In neither of these documents is there any suggestion that the members of the Tribunal share the compensation which is awarded to the claimant by the Tribunal. It is because of the absence of any reference to such a malpractice by the members of the Tribunal in those documents and probably in any other document, that the contemner has sought to suggest in paragraph 8 of his affidavit that it was not his intention to say that the members of Tribunal were themselves appropriating a part of the compensation awarded by the Tribunal, Looking to the clear language of the offending passage, we are of the opinion that the explanation offered by the contemner is an after thought and is not acceptable to us. We hold that he intended to say and he did say that of the compensation which is awarded in the cases decided by the Tribunal, one-third is appropriated by the members of the Tribunal. This is in our opinion, a gross contempt of the Tribunal which is a Court. It not only scandalises the Tribunal, but it brings into disrepute that Tribunal; it lowers the authority of that Tribunal; it undermines the confidence of the public in the integrity of the members of the Tribunal.
21. The charge of contempt is sought to be met by Mr. Jethmalani by contending that it is not alleged in the petition, nor in any other document, on oath that the offending statements are not true. According to him, proceedings under the Contempt of Courts Act are in the nature of criminal proceedings and the contemner is in the position of an accused. It must first be established that the statements made by the contemner are not true and only when this is done that the question of meeting the case by the contemner arises. We summarily reject this argument. It is wholly inconsistent with the jurisprudence which lies behind the contempt of Court proceedings.
22. In the first place, when the statements which are said to constitute contempt of Court are ex facie scandalous and they cast reflection on the honesty, integrity and independence of the Courts and the Judges thereof, there is no, question of proving, that the statements are not true. One cannot accuse a man of dishonesty and then ask him to prove that he is not dishonest. Apart from this, one must proceed on the presumption that the members of the judiciary decide cases before them on the merits of those cases and that they are independent and honest. The argument wholly fails to understand the true nature of the content of Court proceedings. The power to punish persons for contempt of Court is not so much for the benefit of the Judges, constituting the Court, but it is for the benefit of the members of the public. If the confidence of the members of the public in the judiciary is destroyed, the loss is not so much of the judiciary as that of the members of the public.
23. It admits of no dispute that the summary jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Courts. It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not by afford protection, to Judges personally from imputations to which they may be exposed as individuals, it is Intendeds to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the Court is lowered and the sense of confidence which people have in the administration of justice by it is weakened. (See Brahma Prakash v. State of U.P., ).
24. The viability of the judiciary as an institution for the benefit of the members of the public or a society as a whole depends upon the public assumption that the judiciary is an honest and incorruptible institution. The allegaions of the type in the instant case undermine the status of the judiciary and tarnish its image and dignity. Such a thing should not be allowed to be done. That is the principle or the rationale behind the power to punish persons for contempt of Court. Therefore a contemner cannot be allowed to say that it must be first proved that the allegations made by him are untrue before any action against him is taken. This is apart from the fact that a negative fact cannot be proved.
25. This discussion has proceeded on the assumption that justification of the allegations made can be a defence against a charge of contempt of Court. Indeed, Mr. Jethmalani echoing in a more articulate manner the stand taken by the contemner in his affidavit-inreply said that truth is a defence against a charge of contempt of Court. The contemner himself has not stated in his affidavit-in-reply that what he has stated is true. On the other hand, he has asserted that since there is no allegation either in the petition or in the notice that he had made any false statement, he has been advised that he was relieved from the necessity of establishing the truth of his statement. He has also suggested that if the law of contempt seeks to punish the utterance of truth because it points out a case of judicial aberration, then that law will have to be declared void as being an unreasonable restriction on the fundamental right of freedom of expression guaranteed by the Constitution.
26. The petitioner appearing in person has contested this claim of Mr. Jethmalani that truth can be a defence to a charge of contempt of the Court. He has examined the provisions of the Contempt of Courts Act and pointed out that the defenses that are available in proceedings under the Contempt of Courts Act have been mentioned in great details in the Act itself. They are to be found in Sections 3, 4, 5, 6 and 7 of the Contempt of Courts Act.
27. Mr. Jethmalani has relied upon S. 8 of the Act, which is as follows :-
"8. Other defenses not affected - Nothing contained in this Act shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act."
It is Mr. Jethmalani's contention that whatever defence were available at the time when this Act came into force continued to be available despite the fact that some of the defences have been specifically mentioned in the Act.
We must naturally, therefore, proceed to evamine whether, before the enactment of the Contempt of Courts Act. 1971, truth was held to the a defence to a charge of contempt.
28. It must be stated that there is not a single binding judgment in which such a defence was raised and was upheld. Mr. Jethmalani, however, has sought to rely upon certain observations to be found in some of the judgments to which naturally we must now turn.
29. Bathina Ramkrishna Reddy v. State of Madras, , has discussed the relative scope of the offence of defamation and of the Contempt of Court because that was the question prominently raised on the facts of that case. In this connection, it may be noted that the Supreme Court said that when the act of defaming a Judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. The Supreme Court also pointed out that the offence of contempt is really a wrong done to the public by weakening the authority or influence of courts of law which exist for the public good. In the last paragraph of this judgment, certain observation have have been made which, according to Mr. Jethmalani, suggest that truth can be a defence to a charge of contempt of Court. After mentioning that the article in question was a scurrilous attack on the integrity and honesty of a judicial officer and after also mentioning that specific instances have been taken where the officer is alleged to have taken bribe, the Supreme Court stated as follows :- "If the allegations were true, obviously it would be the benefit of the public to bring these matters into light. But if they were. false. they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute. The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations therein."
30. It must be noted that these observations to be found in paragrpah 12 of the judgment were in connection with a contention which had been taken by the contemner before the Supreme Court that publishing the article the contemner had acted in good faith and that the article amounted to nothing else but a demand for inquiry into the conduct of a particular person who was believed to be guilty of corrupt practices in the discharge of his judicial duties. As such there was no contempt either intended or committed by the appellant. The Supreme Court has not stated that truth of the allegations made was a defence to the charge of contempt of Court. It only noted that the allegations cannot be said to have been made bona fide because the allegations were made on the basis of hearsay. The contemner had not even tried to verify the information which he was supposed to have received.
31. It we hold that Bhathina Ramkrishna Reddy's case (1952 Cri LJ 832) is not an authority for the proposition that truth can be a defence to a charge of contempt of Court, it is really not necessary for us to examine the next contention of Mr. Jethmalani that this authority is not shake by the Suprem Court in Perspective Publications Ltd. v. The State of Maharashtra, . However, we may examine the facts of that case and what the Supreme Court has stated on the same. The contempt alleged in the Perspective Publications Ltd. was that a Judge of this Court had decided a case in which he had some sort of personal interest, inasmuch as his brother was a partner of a firm which had benefited by a bank of which one of the parties before the Judge was a director. Then it was suggested as a submission that there was no evidence before the High Court, which had convicted the appellant before the Supreme Court, that the said Judge did not know about the transactions or the dealings between the firm in which his brother was a partner and the bank. Dealing with this submission, the Supreme Court in paragraph 18 of its judgment mentioned that no attempt was made before the High Court to substantiate that the facts stated in the article were true or were founded on correct data.
Thereafter it was stated as follows :-
"It may be that truthfulness or factual correctness is a good defence in an action for libel, but in the law of contempt there are hardly any English or Indian cases in which such defence has been recognised."
32. Despite this Mr. Jethmalani suggested that the Supreme Court said that there are hardly any cases, it did not mean that there are no cases, it did not mean that there are no cases at all. In our opinion, if the Supreme Court had accepted the proposition that truth could be a defence, it would not have obviously failed to mention so. If Mr. Jethmalani failed to mention so. If Mr. Jethmalani's contemption that Bathina Jethmalani's contemption that Bathina Ramkrishna Reddy's case (1952 Cri LJ 832) recognised truth as a defence to a charge of contempt of Court is to be examined, then we fail to see how the Supreme Court did not in the case of Perspective Publication Ltd. (1971 Cri LJ 268), recognise such a defence especially when Bathina Ramkrishna Reddy's case was brought to the notice of the Supreme Court. In the same paragraph, namely paragraph 18, of the judgment, the Supreme Court mentioned that in the case of Bhathina Ramkrishna Reddy, there was some discussion about the bona fides of the person responsible for the bona fides of the person responsible for the publication, but that was apparently does to dispose of the contention which has been raised on the point of the bona fide nature of the publication. According to Mr. Jethmalani, the latter part of this paragraph deals with the other question, namely, the question of bona fide which was also decided in Bhathina Ramkrishna Reddy's case and does not shake the proposition which, according to him, is to be found in the Bhathina Ramkrishna Reddy's case that truth can be a defence. We are unable to accept such strained interpretation of what has been mentioned by the Supreme Court in paragraph 18 of the judgment in the Perspective Publication Ltd.'s case. The obiter dicta of the Supreme Court are undoubtedly binding, but looking to the contention raised and the manner in which it has been disposed of by the Supreme Court, it is clear to us that in the case of Perspective Publications Ltd., the Supreme Court Court did not accept the argument that truth can be a defence to a charge of contempt of Court.
33. This position is not altered by the observations made by the Supreme Court in another case on which also Mr. Jethmalani heavily relied. In M. R. Parashar v. Farooq Abdullah, , the Supreme Court recorded the finding of not guilty on the ground that the respondent before it has denied having made the statements which were attributed to him. While explaining generally the object behind the provisions of the Contempt of Courts Act and the peculiar position it is an inevitable position whereby the prosecutor also becomes a Judge in the contempt of Court proceedings - the Supreme Court made certain observations relating to the need of protecting the judiciary from allegations. Then the Supreme Court states :- "But it is necessary to make it clear that though law does not restrain the expression of disapprobation against what is done in or by courts of law, the liberty of free expression is not to be confounded with licence to make unfounded allegations of corruption against the judiciary. The abuse of the liberty of free speech and expression carries the case nearer the law of contempt."
34. Mr. Jethmalani suggests that it is only the unfounded allegations which attract action under the Contempt of Courts Act and the allegations, if they can be proved to be true. cannot justify the invocation of the provisions of the Contempt of Courts Act. Here again, we are unable to agree. Looking to the nature of the proceedings for contempt of Court and the underlying idea of the contempt of power and also the mischief which this power is supposed to prevent, we are of the opinion that the truth of the allegations, which the contemner says he can prove, cannot be put up as a defence in a charge for contempt of Court. It is necessary to reiterate the nature of the proceedings which are taken for punishing persons for committing contempt of Court and the object behind such power.
35. We have already referred to what has been stated by the Supreme Court in Brahama Prakash's case (1954 Cri LJ 238) earlier in this judgment. In a case of defamation of a Judge personally, the wrong is done to that judge personally but in the case of contempt of Court, even if an allegation is made against a particular Judge, that allegation will be held to be in contempt of Court if it scandalises the Court over which that Judge is presiding, because in such a case it will be an injury to the public. It is an injury to public because it tends to create an apprehension in the minds of people regarding the integrity, ability or fairness of the Judge.
36. As recently as in 1988, Sabyasachi Mukherji J. has in P. N. Duda v. P. Shiv Shankar, , explained the basis of the power which has been given to the Courts for punishing people for contempt of Courts in the following words :-
"Any critisism 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 criticisms 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."
37. We have mentioned earlier that the viability of the judiciary as an institution depends on continued public assumption that the judiciary is an honest and incorruptible institution and any allegations of corruption, ostensibly or apparently deriving their veracity from some facts, are bound to undermine the status of the judiciary. It is for this reason that the Courts in contempt proceedings refuse to examine the strength of the allegations. It has been stated that an invisible fiction is maintained that Judges are incorruptible and that "a public examination of the truth of any allegations may give rise to a public spectacle which will only further perpetuate the damage caused by, the initial publication even if the allegations are ultimately proved to be false." (See Contempt of Court and the Press. page 166. published under the joint auspices of The Indian Law Institute and The Press Council of India - N. M. Tripathi Pvt. Ltd. - 1982). May be, it is better to suffer a Judge against whom prima facie true allegations of lack of integrity are made than expose the entire judiciary to a public trial which must necessarily result if in contempt proceedings the truth of the allegations is allowed to be examined. This is probably the price which we are called upon to pay for the proper and effective functioning, though not whoily satisfactory function in, of an institution such as the judiciary. In so far as the members of the lower judiciary are concerned, it is open for persons who are interested in cleansing that judiciary to lay before the Hiah Court the facts and request for action. In the case of the Judges of the High Court, the procedure for setting things right is more cumbersome, but that is inevitable, if we accept, as we have accepted. that the effective functioning of thejudiciary rests upon the public acceptance of its independence and integrity. It is this that will be seriously damaged if truth is allowed to be pleaded and examined as a defence to a charge of contempt of Court.
38. We have already mentioned above that there is not a single case in which truth has been pleaded as a defence to a charge of contempt of Court and has been accepted as a defence. We may, however, refer to a couple of decisions in which such defence has not been allowed to be raised. In Advocate General v. Seshagiri Rao. , the contemner had been convicted for casting aspersions upon a member of the lower judiciary. It was held that the allegations ex facie amounted to contempt of Court in that they constituted an attack on the competence and integrity of the judicial officers. It was held that in a proceeding for contempt the truth is no defence at all. While so holding, the Andhra Pradesh High Court referred to its earlier decision against the same person wherein it had been stated as follows :- "In our opinion, it is not permissible to a contemner to establish the truth of his allegations as the arraignment of the justice of the Judges 'excites in the minds of the people a general dissatisfaction with alljudicial determinations and indisposes their mind to obev them, and that is a very dangerous obstruction to the course of justice. In our view, the contemner does not oecupv the position of a defendant in a libel action who could plead justification."
It has also been pointed out that in support of the above conclusion in the earlier case, reliance had been placed upon In Re K. L. Gauba, AIR 1942 Lah 105 : ((1942) 43 Cri LJ 599)) (FB); J. and K. Coats v. Chadwick, (1894) 1 Ch D 347, and N. G. Kadir v. Kesari Narain .
39. The facts in Advocate-General v. T. V. John, show that the contemner had made allegations of bribery and corruption against certain judicial officers and he wanted to lead evidence to substantiate the imputations. The Kerala High Court pointed out that if the contemner was aggrieved with the orders, he had his remedies provided under the Code of Civil Procedure and he could not be allowed to impute dishonesty and cotruption to the officers. Proceeding further, it was stated as follows :- "Even otherwise it is extremely doubtful whether it is permissible to a contemner to attempt to establish the truth of his allegations. ................."
In this connection, the Kerala High Court relied upon the following opinion of Chief Justice Willmot in Rex v. Davies. ((1906) 1 KB 32) :-
"The arraignment of the justice of the Judges is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his Judges and excites in the minds of the people a general dissatisfaction with all judicial determination, and indisposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken it is the most fatal and most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than, any other obstruction whatsoever, not for the sake of the Judges as private individuals, but because they are the channels by which the King's justice is conveyed to the people."
The Kerala High Court also noticed the other judgments which have been referred to by the Andhra Pradesh High Court in Seshagiri Rao's case (1966 Cri LJ 642).
40. We are of the opinion that when the Kerala High Court mentioned that it is extremely doubtful whether it is permissible to a contemner to attempt to establish the truth of his allegations, it necessarily meant that it is not permissible to a contemner to do so. We say this because, the Kerala High Court had referred to the Andhra Pradesh High Court judgment in Seshagiri Rao's case. These two judgments are directly on the point that truth cannot be pleaded and examined as a defence to a charge of contempt of Court.
41. We may profitably refer to certain observations to be found in Brahma Prakash's case (1954 Cri LJ 238) (supra) which according to us, suggest that truth cannot be pleaded or examined as a defence to a charge of contempt of Court. Explaining the nature of the act of contempt of Court, the Supreme Court pointed out that it is 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 of justice. Thereafter, the following observations are to be found in paragraph 12 of the judgment :- "It is well-established that it is not necessary to prove affirmatively 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."
If actual proof of the interference with the administration of justice is not necessary, we do not see how truth can be pleaded by way of defence. From this it appears to us that it has not been accepted in this country that truth can be pleaded and established as a defence to a charge of contempt of Court.
41A. In C. K. Daphtary v. O. P. Gupta, the contemner had been proceeded against for having passed scandalous remarks against two Hon'ble Judges of the Supreme Court. In particular he had said that one Judge delivered a demonstrably dishonest judgment which could not fail to show to any discerning person that the Judge did so only to feed fat his prejudice and bias. It was also mentioned by the contemner that the Judge had gone to the extent of writing total falsehoods in the judgment in the defiant belief that there is none to look into and scrutinise his judgments. The Supreme Court observed that a scurrilous attack on a Judge in respect of a judgment or past conduct has adverse effect on the due administration of justice. This sort of attack in a country like ours has an inevitable effect of undermining the confidence of the public in the judiciary. The Supreme Court examined some of the cases in the earlier part of the judgment and held as follows :- "We have already referred to cases which show that he cannot justify contempt. If a judgment is criticised as containing errors, and coupled with such criticism, dishonesty is alleged, the Court hearing the contempt petition would first have to act as an appellate Court and decide whether there are errors or not. This is not and cannot be the function of a Court trying a petition for contempt. If evidence was to be allowed to justify allegations amounting to contempt of Court it would tend to encourage disappointed litigants - and one party or the other to a case is always disappointed - to avenge their defeat by abusing the Judge."
It is, therefore, clear that the weight of the authorities is against the proposition that a contemner can justify his scandalous allegations by pleading truth.
42. There is not a single case where the defence of truth was allowed to be raised and was upheld. However, we must make reference to two judgments where the question of truth as a defence was considered. In State v. Reshi Kumar AIR 1961 J and K 76 : (1961 (2) Cri LJ 766), the respondent, who desired to lead evidence, was given opportunity to do so. On consideration of the evidence and the statement given by the respondent, the High Court was fully satisfied that the respondent committed contempt of Court by wilfully scandalising the Sub-Judge. However, in paragraph 18 of that judgment, the contention that even if the respondent had made the offending statement he was justified in doing so as the allegations were correct and the speech was made for public Good and benefit, was examined. It was noticed that the respondent had not taken this stand in his evidence, but had merely stated that he could not say whether the learned Sub-Judge was corrupt or not, nor was he in a position to say why the people were not happy with the Sub-Judge. This statement showed that the allegations made against the Sub-Judge were not true. Then the High Court held as follows :- "Moreover, it is well settled that any attempt to justify a contempt as being based on correct facts would itself amount to a fresh contempt."
Reference in this connection was made to In Re K. L. Gauba's case ((1942) 43 Cri LJ 599) (supra).
43. In Registrar, High Court, Bombay v. S. K. Irani, the contemner had asked for an opportunity to lead evidence by examining witnesses. The Division Bench has said as follows in paragraph 19 of its judgment :-
"In order to ascertain whether there was any real grievance and whether it was really necessary to examine these witnesses, we asked both Mr. Irani as well as Mr. Master to state facts on affidavit so as to enable us to see whether there was any necessity of giving an opportunity of cross-examining these witnesses .......... However, no affidavits have been filed either by Mr. Master or Mr. Irani when the case was taken up again on 4th December, 1962."
From this one cannot easily infer that the Court would have examined by the correctness of the allegations made by way of justification of the alleged contempt because in the same paragraph earlier, the Division Bench took note of the observations of the Supreme Court in Brahama Prakash's case (1954 Cri LJ 238) (supra) to the effect that the pleas of justification or privilege were not, strictly speaking, available to the defendant in contempt proceedings. Though we have noticed these two judgments in which there was some reference to the possibility of taking evidence, in neither of these two judgments is there any suggestion or even a hint that justification of the allegations by relying upon the truth is permissible in contempt proceedings.
44. Truth can be pleaded as a defence only in those cases where the party wants to allege that he has not committed a particular act. For example, if a party is proceeded against on the ground that he has disobeyed an order of the Court, he can plead that he has not disobeyed the order of the Court. In a case where a party is being proceeded against on the ground that he has written an article or published an article, he may plead that he has not written or published the article. In the case before us, there is no such plea.
45. Moreover, even if we give the opportunity to the contemner to prove the truth of the allegations, how does he proceed to do ? He can only, if at all, lead evidence to show that there were several cases in which the lady advocate appeared where the learned Judge passed orders in favour of her clients. Unless it is established that each of these orders or majority of them were incorrect, it is impossible to provide basis for an allegation that the said Judge passed orders in favour of the lady advocate without looking to the merits of the cases. Can the contempt Court go into the question as to whether the orders passed were correct or not ? In our opinion, this is wholly impermissible. The correctness of a judicial order can only be questioned by procedures provided by law, such as, appeal and revision. In collateral proceedings, the correctness or otherwise of the orders passed by a judicial officer cannot be questioned. The Court dealing with cases under the Contempt of Courts Act has no appellate powers. We may indicate that even if the orders are found to be in a majority of cases wrong, that by no stretch of imagination proves that the orders were passed dishonestly.
46. We, therefore, repeat that the contempt power is meant for upholding the dignity of the judiciary and this is necessary in the interest of the public itself. It is for this reason that we also repel the contention that a law which seeks to suppress the exposition of truth must be held to be in contravention of Article 19(1)(a) of the Constitution. In our opinion, if the object of the law is in the interest of the public, and in relation to contempt of Court, then it places reasonable restrictions as contemplated by Clause (2) of Article 19 of the Constitution and hence the same is valid.
47. It has been brought to our notice that Mr. H. M. Seervai, the constitutional jurist, has reviewed cases referred to by us earlier in this judgment in a different manner. It has been mentioned by him in his Constitutional Law of India that if the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But he also proceeded to add that if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring the judiciary to disrepute. This is a view which deserves to be considered respectfully and ought to be taken into consideration in any attempt for the reform of the law of contempt, but today that is not the law. There might be several ways of remedying the situation which we do not recognise as being fully satisfactory, but trial of Judges by members of the public or by the press is not one designed to maintain or restore the confidence of the public in the judiciary. In the "Contempt of Court and the Press" supra), procedure for investigation into allegations of corruption, bias and gross incompetence has been suggested (page 167). All this is in the realm of the reform of the law of contempt. But, in our opinion, as the law stands today, justification of allegations which scandalise or tend to scandalise the Court by pleading truth is impermissible.
48. Returning to the passages in question, it has not been suggested that devoid of the defence of truth, the statement covered by the first count does not scandalise or tend to scandalise the Court. The allegation has been made about a Judge of this Court that he dispenses justice not on merits but looking to the face of the lady advocate and by being influenced by her seductive charm. This is, in our opinion, a gross contempt.
49. The second instance of a Judge taking off his hearing-aid can be treated as a comment made in humour. We ignore the same. However, we cannot but take a serious note of the allegations of corruption made against the members of the Motor Accidents Claims Tribunal as a whole that they swallow one-third of the amount of compensation awarded by the Tribunal. The contemner has not stated that these allegations are true. On the contrary, in his affidavit-in-reply, he has stated that he did not intend to convey the impression that the members of the Tribunal have actually shared the compensation payable to victims. We have already said above that this is an after thought. We are not satisfied with this explanation.
50. In the result, we convict both respondents Nos. 1 and 2 of having committed contempt of this Court as also of the Motor Accidents Claims Tribunal for the reasons mentioned above.
51. After hearing Mr. Mahesh Jethmalani, we are of the opinion that a sentence of fine of Rs. 100/- in respect of each of the respondents Nos. 1 and 2 will meet the ends of justice. We, therefore, sentence each of respondents Nos. 1 and 2 to pay a fine of Rs. 100/-. In case of default of payment of fine, respondent No. 1 shall undergo simple imprisonment for a week. In case of default of payment of fine by respondent No. 2, Mr. Vivek Khaitan, Executive Director of the Indian Express Newspaper Ltd., who has accepted the notice on behalf of respondent No. 2 and replied to the notice shall undergo simple imprisonment for a week.
52. Order accordingly.