Bombay High Court
High Court On Its Own Motion vs Ketan Tirodkar on 11 October, 2018
Equivalent citations: AIRONLINE 2018 BOM 1216
Author: S.C. Dharmadhikari
Bench: A.S. Oka, R.M. Savant, S.C. Dharmadhikari
SMCP1.17.doc
Syed IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Rehmat CRIMINAL APPELLATE JURISDICTION
Pasha
Digitally signed by SU0-MOTU CONTEMPT PETITION NO. 1 OF 2017
Syed Rehmat Pasha
Date: 2018.10.11
17:57:53 +0530
Bombay High Court on its Own motion. ... Petitioner
Vs
Ketan Tirodkar ... Respondent
Mr. Ketan Tirodkar, respondent in person.
Ms. P.P. Shinde, A.P.P. for the State.
CORAM : A.S. OKA, S.C. DHARMADHIKARI &
R.M. SAVANT , JJ.
RESERVED ON : 14TH JUNE, 2018
PRONOUNCED ON : 11TH OCTOBER, 2018
ORAL JUDGMENT : [Per S.C. Dharmadhikari, J.]
1 It is extremely unfortunate and equally painful that this Bench has to proceed and decide whether the respondent has committed a criminal contempt.
2 The respondent before us has filed number of proceedings and cases in this Court. He relies upon filing of Public Interest Litigations highlighting instances of abuse of SRP 1/90 SMCP1.17.doc discretion by public servants and State Government. He argues them in person. On occasions, he relies on in-depth study of the matters and his overall experience. Such a person is expected to act sensibly and responsibly. However, that is belied by his scurrilous, highly offensive, vicious, intimidatory and malicious allegations against sitting Judges of this Court. We would be failing in our duty if we do not deal with this and in the words of the Hon'ble Supreme Court itself, a flagrant onslaught on the independence of the judiciary, destructive of the orderly administration of justice and a challenge to the supremacy of the rule of law. (Pritam Pal vs. High Court of MP) 1993 Supp (1) SCC
529. 3 Those familiar with modern scientific advancements in the field of telecommunications and information technology ought to be equally aware of the ill-effects and adverse impact of social media. On his Facebook profile, the respondent has published alleged instances of misdemeanour and misconduct of some sitting and retired Judges of this Court. The words used and the language employed is, for instance "that the Judges have sold justice and there are rates at which bail orders and anticipatory SRP 2/90 SMCP1.17.doc bail orders can be obtained." This is equated with a Menu Card in a restaurant. He has termed some retired Judges of this Court as 'middlemen'. He says that this Court has managed to push under the carpet, instances of blatant corruption by forbidding or prohibiting use of mobile phones. Thus, the endeavour of the Judges is not to allow the public to access their misdeeds. 4 The gist of the allegations is that Judges of this Court can be managed. That some of the Lady Judges act like prostitutes. That some other retired and sitting Judges are land- grabbers.
5 We are hesitant to give a word by word, sentence by sentence, paragraph by paragraph account of the publications on the respondent's Facebook profile.
6 Pertinently these very materials were referred to in a notice to show cause addressed to the respondent which has been duly served. Upon its receipt, there is absolutely no iota of doubt that the respondent is aware of what he has to meet. In fact, he has not questioned the procedure adopted, particularly insofar as SRP 3/90 SMCP1.17.doc issuance and service of a show cause notice. He was aware of the charge that he has to meet and, therefore, he purports to deal with it by filing affidavits-in-reply.
7 It is such a person we are dealing with. As the Hon'ble Supreme Court has observed several decades back in the case of Pritam Pal vs. High Court of Madhya Pradesh 1993 Supp (1) SCC 529 that the maxim : 'salus populi suprema lex', that is "the welfare of the people is the supreme law" adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially without fear or favour and without being hampered and thwarted and this cannot be effected unless respect for it is fostered and maintained. A wrong doer like the respondent who puts himself on occasions and at times on par with advocates can hardly be heard to complain. He is mindful of the fact that the proceedings in contempt have to be conducted by following a summary procedure. The power of this Court to punish for contempt is not restricted or trammeled by ordinary legislations. This Court derives the same from Article 215 of the Constitution of India. The inherent power thus derived is elastic, unfettered and not subjected to any limit. In Pritam Pal SRP 4/90 SMCP1.17.doc and later cases, it has been adequately and amply clarified by the Hon'ble Supreme Court that so long as the gist of the specific allegations is made clear or otherwise the contemnor is aware of the specific allegations, it is not always necessary to formulate the charge in a a specific allegation. The procedure under the Rules, therefore, does not offend the principles of natural justice. The Judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as early and quickly as possible. The degree of precision with which the charge may be stated depends upon the circumstances of each case. The time factor is crucial. Dragging of contempt proceedings means a lengthy interruption to the proceedings which, at times, paralyzes the Court and indirectly impedes the speed and efficiency with which justice is administered. So long as the contemnor's interests are adequately safeguarded by giving him an opportunity of being heard in his defence, then, the procedure followed cannot be faulted. This is the summary of the salutary principles laid down by the Hon'ble Supreme Court and at the same time, it has cautioned that the power should be used sparingly. We have, but gone by this prescription alone. SRP 5/90
SMCP1.17.doc 8 It is not the claim of the judiciary that it commits no wrong or no error in discharge of its obligations and duty to the people. Thus, it is the public trust reposed and the confidence, respect of the people that it enjoys and commands, which enables it to discharge its duty independently and fearlessly. In such discharge of its duties, it and its members cannot be attacked. That certainly cannot be countenanced. They are always aware of the fact that they have to render justice in accordance with law. Once they have to proceed in accordance with law, then, no interference in the discharge of this duty from any quarters can be allowed by law. It is the law which enables the higher judiciary to take cognizance of the grievances and complaints of interference in the administration of justice. 9 It is the Constitution of India which is the source of the judicial power. That authorises by Article 246 and the VIIth Schedule thereof to take note and cognizance of contempt of court and if one refers to the List III- Concurrent List Entry No.14, it empowers making of a law dealing with contempt of court, but not including contempt of the Supreme Court. As far as that aspect is concerned, that is exclusively within the domain of the SRP 6/90 SMCP1.17.doc Parliament and Entry No.77 of List I styled as Union List empowers the making of such a legislation.
10 It is common ground that this Court had to initiate suo-motu proceedings when a letter, addressed by a sitting Judge of this Court to the Registrar General, was placed before the Hon'ble The Chief Justice. Along with the said letter, a print-out of the writing of the respondent posted on Facebook was forwarded to the Registrar General of this Court which was also placed before the Hon'ble The Chief Justice. 11 The writing contains serious allegations against the Judges of this Court. Acting upon this letter and the direction issued in furtherance thereof, this suo-motu contempt petition was registered. It was placed before a Division Bench of this Court on 17th February, 2017 and subsequently on 22 nd February, 2017, when the following orders and directions came to be passed and issued :
"1. The Registrar (Judicial-I) has placed on record the letter dated 20th February 2017 addressed by a learned Judge of this Court to the Hon'ble the Chief Justice enclosing therewith three writings posted by the SRP 7/90 SMCP1.17.doc contemnor on his face-book account, the printouts of which have been annexed to the said letter. The Registrar (Judicial-I) informed the Court that the Hon'ble the Chief Justice has directed that the said writings should be placed before this Court. The first writing makes allegations of corruption against five sitting Judges of this Court and two retired Judges of this Court. In other two writings, which are posted by the contemnor, contain scurrilous allegations against the Judges of this Court. The writings appear to have been posted by the contemnor after earlier order was passed by this Court.
2. Under the order dated 17th February 2017, a contempt notice has already been issued to the contemnor on the basis of his writing posted by him on his face-book account. Three writings which are placed along with the letter dated 20th February 2017 of the learned Judge of this Court contain scandalous and scurrilous allegations against the Judges as well as retired Judges of this Court. The language used is derogatory to the Judges of this Court. This Court is of the opinion that such writings tend to scandalise and lower the dignity of the Court. Such writings also interfere with the administration of justice. Prima-facie, the said three writings constitute a gross criminal contempt of this Court.
3. It appears that the said writings are posted after the order dated 17th February 2017 was passed by this Court. These writings show that the contemnor is aware of the order dated 17th February 2017.SRP 8/90
SMCP1.17.doc
4. Accordingly, based on the said three writings, issue another notice under Rule 9 (1) of the Contempt of Court (Bombay High Court) Rules, 1994 to the contemnor. Notice is made returnable on 31st March 2017.
5. We direct the Registrar (Judicial-I) to forward true copies of the writing on the basis of which the order dated 17th February 2017 is passed and true copies of the writings on the basis of which this order is passed in a sealed envelope to the Commissioner of Police, Mumbai. Authenticated copies of this order as well as the order dated 17th February 2017 shall also be forwarded to the Commissioner of Police, Mumbai.
6. We direct the Commissioner of Police, Mumbai to take immediate steps to ensure that the said writings are removed from the face-book account of the contemnor. The Commissioner of Police, Mumbai, to act upon an authenticated copy of this order.
7. After necessary information is obtained in terms of clause (7) of the order dated 17 th February 2017, the Registry shall immediately move the Court in terms of the aforesaid direction.
8. This is a case of extremely serious nature as scandalous material against the Court and against the Judges of this Court has been posted on the social media such as face-book. As we have noticed in another case in SRP 9/90 SMCP1.17.doc the morning, such scandalous material is also posted on the "You-Tube". We have observed that the said case should be placed before a larger Bench. Considering the wider issue involved in this contempt Petition, it will be appropriate if the contempt notice is heard by a larger bench consisting of three or more Judges of this Court.
9. For that purpose, this petition shall be placed before the Hon'ble the Chief Justice in accordance with Rule 7 Chapter I of the Bombay High Court Appellate Side Rules, 1960.
10. The attention is invited to the earlier order dated 17th February 2017. The Registrar (Judicial-I) to take immediate steps as soon as this order is uploaded. The office of the Public Prosecutor shall also communicate this order to the office of the Commissioner of Police, Mumbai."
12 After that, the then Hon'ble Chief Justice constituted a Bench of five learned Judges of this Court to decide this suo-motu contempt petition. However, that Bench could not conclude the proceedings, though it held its sittings on several occasions. 13 Thereafter, there was an administrative order of the then Hon'ble Acting Chief Justice dated 5 th February, 2018, SRP 10/90 SMCP1.17.doc whereunder a Bench presided over by Hon'ble Mr. Justice A.S. Oka was constituted. That is how the matter was listed before this Court on 8th March, 2918.
14 On 8th March, 2018, the following order came to be passed :
"This matter was placed before us pursuant to the administrative order of the Hon'ble the Acting Chief Justice dated 5th February 2018. By this administrative order, a Bench presided over by Hon'ble Mr.Justice A.S. Oka was constituted. That is how we directed to place this matter for direction.
2. Today, this matter is placed for direction. The report dated 8th March 2018 in the form of letter addressed to the Additional Government Pleader is placed on record by the learned APP Shri Yagnik. This report indicates that Ketan Tirodkar, Contemnor was arrested in C.R.No.25/2017 and placed in police custody remand and thereafter judicial custody remand. In the said offence, the contemnor/accused is now in Central Prison, Taloja in judicial custody till 19th March 2018. He has also been arrested in another offence and lodged in the said Prison.
3. Since the judicial custody remand is till 19th March 2018, we are placing this matter on 13 th April 2018 SRP 11/90 SMCP1.17.doc at 3.00 p.m. In the event the contemnor is lodged in the said Prison, he would be produced on the said date is the statement made by the learned APP which we accept. In the event the contemnor avails bail or is released, the Registry in addition to the statement made above shall ensure that the copy of this order is duly served to the contemnor presently through the Superintendent of Prison at Taloja. This would be taken as notice of hearing on 13 th April 2018.
4. Since the report is prepared and a copy of which is placed on record, we take it as compliance of the Courts direction to the Police Commissioner ensuring service of notice of this proceeding."
15 Subsequent thereto, the respondent was produced before this Court on 13th April, 2018, when we the passed the following order :
"Mr. Tirodkar is present in the Court. We have heard him briefly.
2. When the contention was raised by him that he was not supplied with copies of the offending material, though it is accepted by him that notice of this proceeding was duly served, at his request and without this order being treated as precedent, we direct that he shall be supplied with additional copies of printouts which are numbered as SRP 12/90 SMCP1.17.doc pages 3, 4, 5 and 6. Let these copies be supplied to him during the course of the day.
3. Since Mr. Tirodkar says that he does not recollect having either signed or forwarded the supplementary affidavit dated 16th May 2017 and further that he would like to prepare himself so as to take a firm position as to whether to stand by the second/supplementary affidavit dated 16th May 2017 or to file any further pleadings, purely at his request, we post this matter on Thursday, 14th June 2018 at 3.00 p.m.
4. In the event Mr. Tirodkar deems it fit and proper to file any affidavit either supplementary or disputing the filing of second affidavit, he shall file it on or before 31 st May 2018.
5. Post this matter at 3.00 p.m. on 14th June 2018.
6. In the event Shri Tirodkar is in custody then he shall be produced before the Court on 14th June 2018."
16 This order was passed in order to take care of the complaint or grievance of the respondent, particularly of not being treated fairly. We rather went out of our way in ensuring that the respondent is apprised of all the adverse materials and provided with the necessary papers. We also allowed him to file SRP 13/90 SMCP1.17.doc affidavits. There have been affidavits placed on record, pursuant to the service of proceedings on the respondent. On occasions, he addressed letters to the Registry, which also were duly placed before us. There are compliance reports and equally there are affidavits forwarded by the respondent through post on 23 rd May, 2017, Supplementary Affidavit filed by him on 23rd May, 2018 and Supplementary Affidavit filed on 30th May, 2018. 17 We have, on 14th June, 2018, heard him extensively. On that day, the following order was passed :
"1 We have heard the contemnor at length. He appears in person. He has, during the course of his arguments when his attention was invited to the paragraphs of the first affidavit dated 27 th March 2017, requested that he be allowed to delete certain paras and portions thereof or sub-paras of the same. We have in his presence marked the portions, paras and sub-paras which he says he wants now to be deleted and not read as a part of this affidavit.
2 We have also ensured that a copy of this affidavit which he says is not with him is duly supplied to him.SRP 14/90
SMCP1.17.doc 3 We have heard him extensively both on facts and law and allowed him to tender the copies of the judgments relied upon. At the conclusion of his arguments he says that he wants to rely upon certain rulings and judgments and we have given him time of one week to place the same on record. During the course of his arguments and when his attention was invited to his latest affidavit of 23rd May 2018 he says that when it was filed there were some spelling errors and therefore, he has filed an affidavit on 30th May 2018 and that, according to him, removes these spelling errors. In his presence we have allowed both the affidavits to remain on record so also permitted him to refer to and rely upon them.
4 Since the arguments are over and concluded, the judgment is reserved."
18 It is in pursuance of the above that this judgment has been rendered.
19 The Contempt of Courts Act, 1952, and subsequently the Contempt of Courts Act, 1971, are enacted to define and limit the powers of certain Courts in punishing contempt of courts and to regulate their procedure in relation thereto. The Statement of Objects and Reasons leading to the enactment, namely, Contempt of Courts Act, 1971, clearly says that the jurisdiction to punish for SRP 15/90 SMCP1.17.doc contempt touches upon two fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of expression. That it why it was considered advisable to have this law on the subject scrutinized by a Special Committee. A Committee was set up in 1961 under the Chairmanship of late Shri H.N. Sanyal, the then Additional Solicitor General. The Committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in our own country and various foreign countries. Recommendations which the Committee made took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of Courts and interests of administration of justice. After the recommendations of this Committee were generally accepted by the Government of India, it did not rest there. It considered the views expressed on those recommendations by the State Governments, Union Territory Administrations, the Supreme Court, the High Courts and the Judicial Commission. Thereafter, the law was enacted. There were amendments made to it by Act No.45 of 1971 for a more comprehensive legislation and laying down the law in respect of several matters which hitherto has been the subject of SRP 16/90 SMCP1.17.doc judicial exposition. It has also brought the law into line with modern trends of thinking in other countries respecting the powers of Courts to punish for contempt.
20 Pertinently, the word "contempt" is not defined in the Act, but the words "contempt of Court" is defined to mean civil contempt or criminal contempt. The words "criminal contempt"
are defined in section 2 clause (c) to mean as under :
"2. Definitions.- In this Act, unless the context otherwise requires,-
(a) .........
(c) "criminal contempt" means the publication (whether
by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which -
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other SRP 17/90 SMCP1.17.doc manner;
... ... ..."
21 The present matter before us is projecting this aspect of the law of contempt.
22 Before proceeding further, it would be advantageous to refer to the salient features of the Contempt of Courts Act, 1971. As discussed above, the object and purpose of the Act is clear. The Act has 24 sections. Section 1 is setting out the short title and extent and section 2 contains the definitions. The material definition has already been reproduced by us. However, there are certain other provisions which have a great bearing on the issues raised before us. Sections 3, 4, 5, and 6 read as under :
"3 Innocent publication and distribution of matter not contempt.-(1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.SRP 18/90
SMCP1.17.doc (2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-
section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court. (3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid:
Provided that this sub-section shall not apply in respect of the distribution of -
(i) any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in section 3 of the Press and Registration of Books Act, 1867 (25 of 1867);
(ii) any publication which is a newspaper published otherwise than in conformity with the rules contained in Section 5 of the said Act.
Explanation.-For the purpose of this section, a judicial proceeding
(a) is said to be pending-
SRP 19/90
SMCP1.17.doc (A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise, (B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1895 (5 of 1898], or any other law -
(i) where it relates to the commission of an offence, when the charge sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused, and
(ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired;
(b) which has been heard and finally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending.
4. Fair and accurate report of judicial proceeding not contempt.-Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for SRP 20/90 SMCP1.17.doc publishing a fair and accurate report of a judicial proceeding or any stage thereof.
5. Fair criticism of judicial act no contempt .-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.
6. Complaint against presiding officers of subordinate courts when not contempt.-A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to
(a) any other subordinate court, or
(b) the High Court, to which it is subordinate. Explanation.-In this section "Subordinate Court" means any court subordinate to a High Court."
23 A survey of these provisions would indicate as to how innocent publication and distribution of matter is not contempt. Further, a fair and accurate report of judicial proceedings is also not contempt. A fair criticism of judicial act is also not contempt. A complaint against Presiding Officers of subordinate Courts made by a person in good faith is also not contempt. Section 7 SRP 21/90 SMCP1.17.doc very clearly says notwithstanding anything contained in the Contempt of Courts Act, 1971, that a person shall not be guilty of contempt for publishing a fair and accurate report of a judicial proceeding before any Court sitting in Chambers or in- Camera, except in the cases mentioned therein. By section 8 it is clarified that other defences are not affected by the provisions contained in the Act. The Act is also not to imply enlargement of the scope of contempt and that is evident by section 9. By section 10, power of the High Court to subordinate Courts is conferred and by section 11, this Court is conferred with the power to try offences committed or offenders found outside jurisdiction. Section 12 is again relevant for our purpose and that reads as under:
"12 Punishment for contempt of court.-(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.SRP 22/90
SMCP1.17.doc Explanation.-An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his SRP 23/90 SMCP1.17.doc knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
Explanation.-For the purpose of sub-sections (4) and (5) -
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
24 Section 13, prior to its substitution and subsequently by its substitution by the Contempt of Courts (Amendment) Act, 2006, reads as under :
SRP 24/90
SMCP1.17.doc Section 13 prior to its amendment :
"13 Contempts not punishable in certain cases.-- Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of law."
Section 13 post its amendment :
"13 Contempts not punishable in certain cases.-- Notwithstanding anything contained in any law for the time being in force,--
(a) no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
(b) the Court may permit, in any proceeding for contempt of Court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide."
25 Pertinently this amendment came about when the existing provisions were interpreted in various decisions to the effect that truth cannot be pleaded as a defence to a charge of SRP 25/90 SMCP1.17.doc contempt of court. Now, that is possible to be pleaded as a defence to a charge of contempt, but it is entirely for the Court to permit in any proceeding for contempt of court, justification by truth as a valid defence, provided it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. 26 There is a specific procedure set out where the contempt is alleged in the face of the Supreme Court or the High Court and power to take cognizance of criminal contempt in other cases is set out in section 15, which reads as under :
"15 Cognizance of criminal contempt in other cases.-
(1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by -
(a) the Advocate-General, or
(b) any other person, with the consent in writing of the Advocate-General, or
(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law SRP 26/90 SMCP1.17.doc Officer.
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
Explanation.-In this section, the expression "Advocate- General" means -
(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established.
(c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf." 27 Then, we have provisions which indicate as to how this law is not one-sided. This law, by section 16, says that subject to SRP 27/90 SMCP1.17.doc the provisions of any law for the time being in force, a Judge, Magistrate or any other person acting judicially shall also be liable for contempt of his own Court or any other Court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, applied accordingly. However, by sub-section (2) of section 16, the observations or remarks made by a Judge during the course of exercise of appellate or original powers shall not be taken as contemptuous. In other words, for the judicial acts and judicial proceedings, there is a certain freedom and independence which the Judge must so as to fearlessly discharge his duties. The procedure after cognizance is set out in section 17 and it is very clear by section 18 that every case of criminal contempt under section 15 of the Act shall be heard and determined by a Bench of not less than two Judges. By section 19, appeals are provided from any order or decision of a High Court in exercise of its jurisdiction to punish for contempt and by section 20, there is a limitation for action for contempt. 28 A careful perusal of section 22 of the Act reveals as to how the provisions of the Contempt of Courts Act, 1971, are in addition to and not in derogation of the provisions of any other SRP 28/90 SMCP1.17.doc law relating to contempt of courts. Thus, this Act defines and limits the power of certain Courts in punishing for contempt of courts and to regulate the procedure in relation thereto. The substantive power to proceed in cases of contempt of the High Court and Supreme Court are conferred by Articles 129 and 215 of the Constitution of India. These powers are not fettered, but there is a definition of and limitation for exercise of the same by regulating the procedure in relation thereto. The powers conferred by the constitutional provisions are substantive in nature and cannot be taken away for the simple reason that an independent judiciary is part and parcel of the basic structure of the Constitution. By judicial decisions rendered till date, it has been amply clarified that a criminal contempt cannot be confused with contumacious conduct. Further, the consequences of the act mentioned in the definition of the term "criminal contempt" are not to be established. In the sense, actual consequences are not necessary for establishing criminal contempt (see in this context 1973 Criminal Law Journal 1211 State of U.P. v. D.K. Dass Vidhi. ). It has been held in a decision reported in the matter of Basudeva Prasad, Advocate & Ors. AIR 1961 Patna 437 that the conduct of a person proceeded against must be offending to the majesty of law SRP 29/90 SMCP1.17.doc and undermining the dignity of the Court. The Patna High Court in this context held as under :
"... ... ... ...
This Court can never be too sensitive where a scientific analysis of any matter of public interest is taken up by any member of the public, even if it has got an indirect reference to the Judiciary including the High Court and having a bearing on any matter of practice and procedure of the Court. A line, however, has to be drawn between well balanced discussion and sneering remark casting reflecting upon the High Court bench, or for the matter of that on the judiciary.
The former can by no means have a tendency to lead to loss of confidence in the minds of the people regarding the administration of justice. The views advanced, if wrong, may be suitably countered or shown to be wrong ; and if well founded, might be accepted. If the same views are expressed clothing them in language in a sneering pattern or containing innuendoes on the Judges, it is bound to affect the dignity of the Court and bring it into disrepute.
The position would be still worse and the situation might be irreparable, where the views expressed concerning the manner of appointment of Judges are ill-founded, proceeding from personal bias or unripe judgment in the light of suppositions. It cannot be denied that Sri Basudeva Prasad was extremely ill-advised to choose the words "some lawyers who did not make any mark in their SRP 30/90 SMCP1.17.doc profession nor had any visible practice have found their way to the bench".
The suggestion is palpable that some members of the bench had managed to secure appointment not by dint of their merit but by using some ind of influence - a view which might be difficult to controvert and is bound to work mischief in the public mind. I am, satisfied, therefore, that the passage in question has the effect of bringing into disrepute the Patna High Court and lowering its dignity. Mr. Basudeva Prasad must accordingly be found guilty of having committed contempt of Court."
29 It is of equal relevance to note that administration of justice cannot be brought into ridicule or disrepute. If the confidence of the people in the administration of justice is shaken, then, that could be subversive to the rule of law. 30 In this context, the following observations and conclusions of the Hon'ble Supreme Court in the decision in the case of Ramchandra Ganpat Shinde & Anr. v State of Maharashtra & Ors. reported in AIR 1994 SC 1673 are relevant :
"12 Mr. Justice Arthur T. Venderbilt in his "The Change of Law Reform 1955" at pages 4 and 5, stated that:SRP 31/90
SMCP1.17.doc ".......it is in the Courts and not in the legislature that our citizens primarily feel the keen, the cutting edge of the law. If they have respect for the work of their courts, their respect for law will survive the short comings of every other branch of the Government; but if they lost their respect for the work of the Courts, their respect for the law and order will vanish with it to the great detriment of society".
(vide the Judicial Process by H.J. Abraham, p.3) 13 Respect for law is one of the cardinal principles for an effective operation of the constitution, law and the popular Government. The faith of the people is the source and succour to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication - be it judicial, quasi-judicial or administrative as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned, if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the courts and take recourse to extra-constitutional remedies which is a death- knell to the rule of law."
SRP 32/90
SMCP1.17.doc 31 Further, the language or use of words, if imputes bias or favouritism to a Judge, then, that is punishable as well. Thus, the definition has been analysed to mean the publication, whether by words spoken or written or by signs or by visible representations or otherwise of any nature or the doing of any other act whatsoever which scandalises or tends to scandalise or lowers or tends to lower the authority of any Court or prejudices or interferes or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. Thus, the scandalising or attempting to scandalise, lowering or tending to lower the authority of any Court, or prejudicing or interfering or attempting to interfere with the due course of any judicial proceedings or interfering or attempting to interfere with or obstructing or attempting to obstruct the administration of justice in any other manner is criminal contempt. The broad sweep of the definition, therefore, is indicative of the fact that one cannot launch a vilification campaign and it cannot be said, after totality of facts are taken into consideration, that the person proceeded against was only critical of an administrative or non-judicial act of the concerned SRP 33/90 SMCP1.17.doc Judge or Presiding Officer. In the decision reported in the case of National Textile Workers' Union v P.R. Ramakrishnan & Ors., AIR 1983 SC 759, this aspect is amply clarified by observing and ruling that none gets a licence to criticize, much less scandalise the Court by launching an attack on a Judge or Presiding Officer and then alleging that it is not during the course of his functioning as a Judge, but when he was acting in administrative or non- judicial capacity. Very often those proceeded against and even the public have this perception that they can, by their publication, attack the functioning of the institution and while they do so, it is only incidental that they refer to an act of a Judge in his administrative or non-judicial capacity. Such persons forget that what is paramount is the authority of any Court, the sanctity of judicial proceedings and above all, the administration of justice. If that is scandalised or prejudiced or interfered or obstructed, then, even an attempt to do so is criminal contempt. This does not hamper any constructive criticism and how that act is not termed as contempt is evident from sections 3 to 7 of the legislation itself. However, there are several facets and when the word 'scandalise' is employed in the definition, it is very clear that there is no special or technical meaning assigned to it, but ordinary meaning SRP 34/90 SMCP1.17.doc of the same. It is evident that if a criticism is in good faith or the publication is innocent, fair and accurate, then, that is not taken to be contempt at all. In the circumstances, we do not see any scope for an argument that this Act unduly curtails the freedom of speech and expression. This freedom is not absolute, but subject to a reasonable restriction and if in the course of exercise of this freedom, a person commits contempt of court, then, he will not be able to escape the consequences of the Contempt of Courts Act, 1971, by pleading that he was exercising this freedom guaranteed by the Constitution. It is the Constitution which has subjected this freedom to a reasonable restriction. This law, therefore, has been held to be a reasonable restriction on the freedom of speech and expression. The Hon'ble Supreme Court held as under :
"7. We do not propose to give publicity to the grossly defamatory allegations made by the contemner, by reproducing them in our Judgment. The gist of these allegations is that certain Judgments given by the four Judges of the High Court proceeded from corrupt motives. The contemner seems to think that he can deter the Judges from discharging their duty by maligning them before the public, by alleging that their judgments are influenced by corrupt motives. The fact that the contemner has made SRP 35/90 SMCP1.17.doc allegations of corruption against the four Judges is not denied by him and indeed, he stated before us that he wanted an opportunity to establish those allegations. If we were to grant him such an opportunity that would have aggravated the contempt. A reckless and malicious person like the contemner could have borrowed the support of some disgruntled litigants of his own feather to aid and abet him. Even then, in order to test the bona fides of the contemner, we asked him to furnish to us a list of the names of persons, particularly advocates, whose affidavits he proposed to file in support of the charges of corruption levelled by him against the High Court Judges. He did scribble a few names in our presence but that was the end of the matter. He conveniently forgot all about his tall claim that he will be able to get the affidavits of even practising lawyers in support of his case. It is clear that the contemner was only trying to trick the Court into believing that he is not a lone fighter in his demand of justice against the four dispensers of justice. No one came forward to support him. No one possibly could. He is not fighting in the cause of justice. He has become an enemy of the Courts because certain decisions given by them are not to his liking. "I will leave you alone, if you decide in my favour. I will charge you of corruption if you dare to decide against me" - That sums up his attitude to the Courts. Judges must treat their path of rectitude undettered by such threats. This Court is there to protect them from scurrilous accusations prompted by malice.
8. The conduct and writings of the contemner constitute SRP 36/90 SMCP1.17.doc serious interference with the administration of justice, since his sole object in giving publicity to the defamatory allegations against the High Court Judges is to deter them from deciding cases against him or against those in whom he is apparently interested. The apology tendered by him is an eye-wash, a make-belief, and cannot be be accepted. In fact, there is no apology to accept because he has resiled from it. He is penitent for having apologised to the High Court Judges whose character he has assailed without the semblance of any sincerity of purpose or purity of means. He is not penitent for his conduct."
32 In a landmark decision reported in the case of Brig. E.T. Sen (Retd) v. Edatata Narayanan & Ors. AIR 1969 Delhi 201 it is held as under :
"13. This Court has also, in several Full Bench decisions, laid down the law in regard to contempt of Court with sufficient clarity. In Surat Singh v. Des Raj Chowdhry, 1968 Delhi LT 1(FB) the power of this Court to punish for contempt has been stated to be inherent in its character as a Court of Record and the recognition of this power under Article 215 of the Constitution has been noticed. After referring to Article 19(1)(a) and Article 19(2) of the Constitution, it has been pointed out that neither the Constitution nor any other law contemplates any exemption or a saving provision in favour of the press or the profession of journalism as such, with the result that the freedom of speech and expression as guaranteed by Article 19(1)(a) SRP 37/90 SMCP1.17.doc has been held to be available to all citizens in an equal degree without conferring any greater privilege on the press or the journalists. This, however, does not by any means affect the high esteem in which free civilized democratic society like ours holds independent and public-spirited journalists to express their views fearlessly but rationally in sober and restrained language. It has further been pointed out in this decision that though contempt of Court has not been defined either in the Constitution or any other statute, its concept is now very well settled. "Contempt by speech or writing", it has been pointed out : "may be by scandalising the Court by, itself or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard because in the last-mentioned instance, injurious misrepresentation concerning litigating parties may induce them to discontinue the action or to compromise or may deter other persons, with good causes or actions, from approaching the Court. And then, it may also tend to influence in a subtle or subconscious manner the judicial thinking on the part of the Court.
14. The submission that the public has a right to be apprised of all that happens in the open Court and that the respondents having merely answered to the rightful demand of the public by publishing the material in question, contempt of Court cannot, as a matter of law, be held to be committed, has merely to be stated to be rejected. No such alleged right of the public and no such alleged obligation on the part of the respondents can override the law of contempt of Court, without which effective and pure administration of SRP 38/90 SMCP1.17.doc justice seems to us to be inconceivable in a set-up like ours."
33 In another case Shri C.K. Daphtary & Ors. v Shri O.P. Gupta & Ors. reported in AIR 1971 SC 1132, it is held as under :
"52 It is not necessary to decide this point or the point whether the existing law relating to contempt of Court is a 'law' or not within the definition of the word 'law' in Art. 13 (a) (3), as we have come to the conclusion that in any event the existing law imposes reasonable restrictions within the meaning of Art. 19(2). Apart from this, the Constitution makes this Court the guardian of fundamental rights conferred by the Constitution and it would not desire to enforce any law which imposes unreasonable restrictions on the precious right of freedom of speech and expression guaranteed by the Constitution.
53 In this case it is claimed that respondent I has committed contempt of court by circulating a pamphlet or booklet containing criticism of the judgment of this Court, delivered by Mr. Justice Hegde, on behalf of himself and Mr. Justice Shah, as he then was, and also containing scurrilous criticism of the conduct of both the Judges. Then, what is the existing law on this particular point ? We are relieved from reviewing earlier authorities because this Court has recently in two cases examined the law. In Perspective Publications Ltd. v. State of Maharashtra (1969) 2 SCR 779 at pp. 791 and 792 = (AIR 1971 SC 222 at pp 230) Grover, J., speaking on behalf of the Court, reviewed the entire case law and SRP 39/90 SMCP1.17.doc stated the result of the discussion of the cases on contempt as follows:
"(1) It will not be right to say that committals for contempt for scandalizing the court have become obsolete.
(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.
(1) [1965] 1 S.C.R. 413.
(2) [1969] 2 S.C.R. 779.
(3) It is open to, anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."
(4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the Court.
The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of SRP 40/90 SMCP1.17.doc justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as contempt. (5) Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjee, J. (as he then was) (Brahma Irakash Sharma's case) 1953 SCR 1169 = (AIR 1954 SC 10) the publication of a disparaging statement 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 of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties."
54 Later, Hidayatullah, C. J., in R. C. Cooper v. Union of India (1970) 2 SCC 298 at d. 301 = (AIR 1970 SC 1318 at pp. 1320, 1321) observed :
"There is no. doubt that the Court like any other institution does not enjoy immunity from fair criticism. This Court does not 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 in possession of all truth or hold that wherever others differ from them, it is so far 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 SRP 41/90 SMCP1.17.doc others.............. We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may not be actionable, 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 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 of the institution of courts, administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril. We think this will be enough caution to persons embarking on the path of criticism."
55. We are unable to appreciate how the law, as summarised in the two cases places unreasonable restrictions on the freedom of speech. But the argument of the first respondent was that we have now a written constitution, like the United States of America, and if in the United States, in order to give effect to the liberty of speech and freedom of expression the common law has been departed from, we should also follow in their footsteps. But the American Constitution and the conditions in the United States are different from those in India,. In the American Constitution there is no provision like Article 19(2) of our Constitution."
SRP 42/90
SMCP1.17.doc 34 Thus, plethora of judgments reiterating the above principles are rendered. It is unfortunate that till date, despite judgments of the Hon'ble Supreme Court and this Court which are indicative of the fact that tendency of some litigants and members of the public to treat this august institution disdainfully in order to further their selfish motives continues and the lessons are not learnt. We need not refer to each and every judgment reiterating the above principles. It would be sufficient to refer to a judgment of the Hon'ble Supreme Court in the case of Haridas Das v. Smt, Usha Rani Banik & Ors. Reported in AIR 2007 SC 2688. The Hon'ble Court held as under :
"8 He stated that contempt criminal No.9/2001 was initiated against him by the High Court as he alleged corruption against the then Chief Justice R.S. Mongia, Justices Iqbal Ahmad Ansari, A.K. Pattanaik, N.S. Singh, G.N. Sharma and a District Judge and Additional District Magistrate and others. It appears that the High Court perused the record and the earlier orders passed by the Court and taking "overall view of the entire matter", felt that there was no need to peruse further and need to be closed.
............
12 There is guarantee of the Constitution of India SRP 43/90 SMCP1.17.doc that there will be freedom of speech and writing, but reasonable restriction can be imposed. It will be of relevance to compare the various suggestions as prevalent in America and India. It is worthwhile to note that all utterances against a Judge or concerning a pending case do not in America amount to contempt of Court. In Article 19 the expression "reasonable restrictions" is used which is almost at par with the American phraseology "inherent tendency" or "reasonable tendency". The Supreme Court of America in Bridges v California (1941) 86 Law Ed. 192 said :
"What finally emerges from the clear and present danger cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."
The vehemence of the language used is not alone the measure of the power to punish for contempt of Court. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore required to be well taken care of to maintain the sublimity of Court'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 SRP 44/90 SMCP1.17.doc unjustifiable interference is suppressed it is not because those charged with the responsibilities of administration of justice 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 and 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 of the institution of Court, administration of justice 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., SRP 45/90 SMCP1.17.doc (as the learned judge was then) in R.C. Cooper v. Union of India (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 in Reg v. Gray 1900(2) QB 36 at 40 as follows:
"Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a 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 of Volume-9 of SRP 46/90 SMCP1.17.doc Halsbury's Laws of England; Fourth Edition, "The punishment is inflicted, not for the purpose of protecting either the Court as a whole or the individual Judges of the 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 of the Court, from the mischief they will incur if the authority of the tribunal is undermined or impaired."
16 The view was echoed by this Court in Re. D.C. Saxena v. CJI (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 of justice or the lawful process of the Court, is a contempt of Court."
............
19 Krishna Iyer, J. in his separate judgment In Re. S. Mulgaokar: (1978 (3) SCC 339) while giving broad guidelines in taking punitive action in the matter of contempt of Court has stated:
".....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, 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"
... ... ....
SRP 47/90
SMCP1.17.doc 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.
.........
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 facts, 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 outrageously 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 of SRP 48/90 SMCP1.17.doc democracy. If people 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 biased."
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 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 of administration of justice by bringing it down to disrespect and disrepute. It impairs confidence of the people in the Court. Once door is opened to this kind of allegations, aspersions and imputations, it may provide a handle to the disgruntled litigants to malign the Judges, leading to character 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, SRP 49/90 SMCP1.17.doc Robs me of that which not enriches him And makes me poor indeed."
26 Majesty of Law continues to hold its head high notwithstanding such scurrilous attacks made by persons who feel the law Courts will absorb anything 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) seek 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 divine.
27 What is contempt of Court has been stated in lucid terms by Oswald in Classic "Book on Contempt of Court". It is said:
"To speak generally, contempt of court may be said to be SRP 50/90 SMCP1.17.doc constituted 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 of Trinidad and Tobago (1981) 1 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 past or 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 of justice. Thus, before coming to the conclusion 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 SRP 51/90 SMCP1.17.doc or the other, will determine whether or nor the act complained of amounted to contempt."
.........
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 of justice loose faith in the institution that would be the darkest day for mankind. The importance of judiciary needs no reiteration." 35 This preface was necessary because the respondent before us has not disputed that he has published the offending material. He has not disowned the same either. He has proceeded on the footing that the publication is attributable to him, but he seems to suggest that he had either a right to do so or, unmindful of the consequences of the legislation and its provisions, he has indulged in the act. In order to understand this aspect of the matter, we deem it appropriate to refer to the affidavits filed in reply by the respondent.
36 Before we do that, it would be proper to reproduce the contents of the offending posts on the Facebook profile of the respondent. They are as under :
SRP 52/90
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Image Ketan Tirodkar
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"[kkyP;k dksVkZe/;s Marathi CCTV yko.;kl lokZPp U;k;ky;kus vkns'k dk<ys- eqacbZ mPp U;k;ky;kus jsdkWjMhaxP;k fHkrhus eksckbZy oj canh ?kkryh- [kkyP;kaP;k xksV;kaph eki dk<k;yk g;kauk etk okVrs- Lor%P;k lMysY;k tursyk fnlq u;sr Eg.kqu yioqu Bsorkr-
txkryh lokZr tkLr ykp[kksjh HkkjrkP;k loksZPp U;k;ky;kr pkyrs- eqacbZ mPp U;k;ky; manage dj.ks FkksMa dBh.k vkgs- ,d nksu judicial prostitutes lksMY;k (*****, *****) rj ckdhps izkekf.kd vkgsr- i.k Supreme Court e/;s ***** vkf.k daiuhus tks /kqMxql ?kkryk rks u Hkqrks Hkfo";rh-----"
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Image Ketan Tirodkar
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eqacbZ mPPk U;k;ky;kps Menu Card....
1.) Justice *** *** - - - a) Family matters - - -
Rs.5 lakh onwards.
b) Anticipatory bail - - - - Rs. 25 lakh onwards....
c) Bail - - - Depending upon the case details.
(Middleman- - ***** and retired Justice *** ***.
2) Justice *** *** - -
SRP 53/90
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a) Rs. 5 lakh and above for Family or women
related matters such as rape, molestation....
b) Anticipatory bail or bail - - - Rs.20 lakh and above (Middleman is her friend).
3 Justice *** *** - - - Rs/ 5 crores and above in property matters (A group of senior counsels) No criminal matters.
4.) Justice *** *** - - - Settles for any amount her husband agrees to.
5) Justice *** *** - - Cheapest among all.
Latest case was of Appeal-pending Bail to
Pappu Kalani
6) Justice *** ***
7) Justice *** ***
Both retired.
Pls share as much as possible...."
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SRP 54/90
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Image Ketan Tirodkar
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"Lor%P;kp dksVZ deZpk;kZaph tehu gMi d:u txkyk rRoKku
>ok;yk f'kdo.kkjs mPp U;k;ky;kps fuPp U;k;eqrhZ gqrkRek pkSdkr ukxMs d:u piykauh >ksMk;P;k yk;dhps vkgsr- gjketk|kauks rqeP;k laLFksdjrk jk=h vijk=h jkcjkc jkc.kk;kZ deZpk;kZadfjrk jk[kho Bsoysyk Hkq[kaM [kkmu R;koj cka/kysY;k bekjrhrhy ¶yWVl HkkM;kus fnysr jkaMkauk- dks.kR;k rksaMkauh contempt dk<rk vkeP;koj\"
37 A perusal of this would indicate that the profile contains names of sitting and retired Judges of this Court. They also make a reference to an Ex-Chief Justice of India who is no more. In the affidavits filed in reply from 27th March 2017, the paragraphs and portions other than those deleted read as under :
Extracts from the Affidavit dated 27th March, 2017 "... ... ... ...
2] Since then it has always been a pious feeling on every occasion that I have developed during each visit to this temple of justice, namely, Hon'ble Bombay High Court.
This Hon'ble Court has been sensitive to the causes of public interests raised by me through various Public Interest Litigations since year 2007. *** *** *** *** *** And it is because of this liberty that I have been successful in contesting majority of my PILs successfully.SRP 55/90
SMCP1.17.doc ............
A] A portion of the land was also allotted to politicians and bureaucrats.
............
What is the criteria for such "Permanent Headquarters"
when only a few select inconvenient Lordships are "blessed" with it while others are "And they lived happily ever after becoming a HC Judge" category?
Same fate was met by Justice *** *** who had differed with the then Chief Justice over the "shielding" ineligible Vice-Chancellor of Mumbai University.
............
If the Judges decay, the contempt power would not save them, Judges like Ceasar's wife should be above suspicion.
The dignity of the Judiciary has eroded and morals of the judges have decayed, not because of the scandalising comments passed by politicians or public but due to the failure to deliver justice in time and every time. The judiciary is a mute spectator on most of the occasions to deal with the remediless evils faced by the citizens and Justice is thrown to the wolves; weeping quietly for long and far too long.
13] To put it in the words of Justice *** ***; The integral yoga of shanti and neeti is so much the cornerstone of the judicial process that criticism, wild or valid authentic or anathematic, shall have little SRP 56/90 SMCP1.17.doc purchase over the argumentation of the Court. I quite realise how hard it is to resist, with sage silence, the shafts of acid speech; and, how alluring it is to succumb to the temptation of argumentation where the thorn, not the rose, triumphs. Truth's taciturn strategy, the testimony of history says, has a higher power than a hundred thousand tongues or pens. In contempt jurisdiction, silence is a sign of strength since our power is wide and we are prosecutor and judge."
............
Extracts from the Affidavit dated "Nil"
(D) I have had the priviledged of being of same use to the society, courtesy, this Hon'ble Court's decisions in some of my PILs, such as multiple flat allotments in Chief Minister's discretionary quota, rationalist Dr. Narendra Dabholkar assassination case being handed over to C.B.I. Adarsh Housing case being handed over to C.B.I. & liked.
I utilized this social status conferred upon me by the orders of this Hon'ble Court for guiding General Public who user to approach me for advice & drafting.
I could earn some money as also I could do some charity.
(E) Over the period of time, I won rapport with many lawyers and journalists as well as judges. I could not at times, distinguish between well-wisher ill-wishers & got carried away by some people in high positions. Some other people in equally high position went against me.
Some journalists developed on impression due to my SRP 57/90 SMCP1.17.doc proximity with some judicial officers, that I was settling matters. They started expecting some odd frames, such as costly gifts, scotch bottles etc. I succumbed to demand of a lady reporter from a leading English daily on a couple of occasions before I realized that she was exploiting me under the impression that I earn money out matter settlements in conspiracy with some judicial officers of this Hon'ble Court.
I stopped entertaining this lady reporter and such other elements after realizing their intention. (F) Then Chief Justice Lordship *** *** and his Law associate went out of their way to pamper me and misguide me for no reason. This associate well to get C.J. office staff at my friend's farm house in rehabilitee was and few other places on the house. He used to tell me it was CJ's request. I used to get excited that C.J. of Bombay High Court was requesting me.
(G) I was used to "collect" favours from some litigants in a gymkhana in the company of the law associate of Chief Justice *** *** . I was however not aware as to who the party giving money was favoured. I was also shown a tower by Shri *** *** and his associate at Worli where former CJ Shri *** *** had been given six flats during his tenure as CJ of this State. He sold them later. All were in different names. Shri *** *** wanted me to lodge complaint with CBI and Apex Court against Shri *** *** but I was not having idea of the relation of Shri *** *** with the name of the flat holders. I did not believe their SRP 58/90 SMCP1.17.doc connection with Mr. Kumar.
(H) I was many a times asked to book suits and farm houses for a woman staffer, a staff of Shri *** *** at various places. Shri Shah's associate used to escort her and Shri *** *** used to escort her and Shri *** *** used to come in disguise later. He used to keep his cell phone away.
(I) I was given various tips and hints by these two to write against some Hon'ble Lordships of this Hon'ble Court to CJI and CBI Director, but I did not post the letters as I was not convinced of the genuineness of the matters. There was once a news article in Times of India about an Hon'ble Lordship calling traffic ACP to his chamber as the lordship was stuck in traffic jam on way to Court. I gave the matter to the lady reporter who used to demand favours from me. She was told by Shri *** *** that she should condemn the Judge for misuse of office as he did so for personal convenience. The report was published. The lady reporter was paid Rs.10,000 and I was asked to give a wine bottle to her. I did so in goodwill and I had no feelings and sentiments for the report that she carried out. (J) The associate of Shri *** *** used to visit my place often with the lady staffer and at one point of time I had to lie to his wife. I then stopped being in touch with Shri *** *** and this associate. They tried to get me back into the circle by offering a matter for settlement in a case, but I was fed up.
SRP 59/90
SMCP1.17.doc I however found that C.J. was not entertaining some good PILs of mind. For e.g. I had received an RTI reply from RBI stating that there were NPAs to the tune of Rs.2.16 lakh crore with PSU bank. I had filed PIL in 2014 Shri *** *** dismissed it without calling for papers. I then filed a review and then he dismissed it again. Another PIL was challenging a circular of Union Ministry for Pension & Public Grievances granting Revision to the illegal wires of IFS & IPS officers Shri *** *** dismissed it too.
I started developing hatred for this gentlemen and his law associate. I had just then married a fresh law graduate whom I met in this Hon'ble Court. She had a near bad experience from a senior counsel and so stopped coming to court after marriage.
I had demands from some lawyers who wanted to further their agenda via my PILs & FB page. A lady Senior Counsel has been my father's friend since years and used to brief me on character of some lady judges who superseded her in carrier. According to her stories some Senior Lady Judges (one retired & other still in service) were loose character.. However, I was having very high regards for both the lady judges who she was referring. She got me in touch with a sitting judge of this Hon'ble Court to support her version. The sitting lady judge as I know had two flats in government quota. One for her husband in artist quota & one for herself in Session Judges' SRP 60/90 SMCP1.17.doc quota. I never had respect for this lady judge as she had deliberately rejected my bail application when she was in MCOC court and she had done it at the instance of a senior defence lawyer who was representing a rich co-accused who was brought to books due to my Endeavour by which I had revealed crimes committed by me in connivance with police. This senior lawyer's wife is associated with Marathi stage/films and is a close friend of the lady Judge. I am not naming anyone here as I do not want to sensationalise any incident.
Later this Hon'ble Court passed order to ignore the bail rejection order of this lady Judge and look fresh into the matter. [Application 1228 of 2006].
(K) This lady judge once sent her friend a celebrity's wife to my mother's residence in Pune where I had gone for a few days. The daughter to this celebrity had passed LL.B. Examination and she too had come over. This Celeb's wife told me the same story as what the senior Lady lawyer & lady Judge were narrating. I said so what is expected of me. The answer was "write on F.B. with your name".
I told her that I know both the cases and they were selected on merit.
I then had police Protection provided the instance of this Hon'ble Court as I was ink attacked in the premises of this Hon'ble Court by activists of Maratha Reservation. SRP 61/90
SMCP1.17.doc I received a call after the lady and her daughter left. There was a call from Protection branch to enquire whether I had taken permission for going to Pune. I told the officer I was prior to person and did not require permission. As far escorts permission, I had intimated the policemen to such permission. Further enquiries revealed that this lady had called up Mumbai's Jt. C.P. to complaint against me travelling with police escort to Pune. ............
(M) Since 2015; I shared my FB Account with many lawyers & journalists. That time it was not such a possessive concept like bank account. There lawyers and journos used to write on the FB page for gaining millage & settling their personal or professional scorer. This account had gained thousands of followers by then.
I was then using my friend's office as residence as I have no place in Mumbai. My public interaction was immense although I had stopped coming to High Court. This office was accessible to all the group members, advocates, policemen etc. I used to keep blank signed pages in green and white for typing PILs that I used to email from out o Mumbai and my friends used to take printouts on these pages and I used to come down only for notary purpose to Mumbai. I have not filed any affidavit after the one dated 27 th March 2017. Some vested interests seem to have either forged my signature on the document shown to me by this Hon'ble Bench on 13th April 2018 during the hearing. The letter is SRP 62/90 SMCP1.17.doc not a part of the compilation sent to me. Either it is sent by misusing the blank papers that I used to keep in my house for PIL filing purpose or by forging my signature. (N) I then once learnt of a CHS being formed by sitting & retired Judges of this Hon'ble Court upon a plot of land allotted for MIG housing comprising of over 150 tenements of 600 sq. ft.
A retired judge told me that even junior most judges had opted for membership hostel. The member were from out of Mumbai and Maharashtra each of them has a flat in a Metropolitan City and as per land reserve code one cannot apply for a government place if one has of other a house in some city or a legal heir to such a house.
Earlier, I did not know about the plot in Oshiwara being allotted to Surbhi CHS. The urgent following by then Chief Secretary Shri Swadhan Kshatriya built pressure upon MHADA to give away a plot. I then started writing on my blog Ketan Tirodkar. On about the development of Surbhi and my group used to copy past it on FB page.
I also wrote a lot about alleged corruption of some High Court Judge on my website. I had filed a PIL on correction of High Court Judges (Cr. PIL (St) 88 of 2014) stating out various cases of alleged misdoings Hon'ble Bench headed by Shri Justice A.S. Oka dealt with PIL elaborately & disposed off the same. No contempt was issued.
SRP 63/90
SMCP1.17.doc My writings about corrupt judges on my website & about Surbhi CHS were out of agony for the injustice being meted out by some benches/judges. Also the not so decent behaviour of them CJ Shri *** *** and his law associate had affected me very badly. The experience my wife had with a Senior Counsel and his son too had hurt me. Some unpleasant incidents had instilled lot many unpleasant thoughts in my mind.
I should have found solace by interacting with some decent retired Judges and lawyer. However, I became vicious, Moreover, the fact of some Hon'ble retired judges from other state already having government quota houses in that state, grabbing a plot in this state, made me more vicious. I lost my balance and wrote bad things on my website. The group members copied many of then and posted on the FB page. It was entirely my responsibility to ensure that such writings should not have been exposed to public. My website does not have such great following so there no one would notice. But it became a big bank on FB, brought me lot of following.
(O) I am very sad that I have created this situation wherein this Hon'ble institute has to initiate such a proceeding against me, who has no academic calibre as compare to the stature of this institute.
I should have taken initiative to approach either police or this Hon'ble Court. My wife had taken it very SRP 64/90 SMCP1.17.doc seriously and has asked me to come clean of all litigations including this if I want to continue with her. I do want to continue with her and make her stand again in this Hon'ble Court. I too want to dedicate myself to the cause of public good with the help of this Hon'ble Court.
............
(JJ) In the end, I once again submit myself to the jurisdiction of this Hon'ble Court with repentance in my heart for the irresponsible behaviour of not shutting down the Facebook page. Also, I feel that I was ungrateful to this Hon'ble Court which made my life and gifted me my life partner. I have not been fair to her too; as I made her stop coming to this Hon'ble Court due to such petty incidents and some petty minded people who were in high posts.
It was her wish then to breath her last in these premises. I curtailed her dream. I want to get back into life. I want to give my wife back her career in law. I love this institute. I had filed earlier affidavit of 27th March 2017 with some unpleasant people in mind. That was my mistake.
I should have remembered all the good things that this Hon'ble Court gifted me. I am sorry. I apologize whole heartedly and pray for being directed a community service in form of clearing of toilets, libraries, lift grills, the jobs that are performed by women who are not equipped with any mechanized devices or masks or gloves, in this Hon'ble SRP 65/90 SMCP1.17.doc Court I shall perform this service for a much period as ordered, as it is my hobby to do clearing jobs.
I shall utilize my resources to equip the staff with electronic devices for clearing as also makes, apparons & gloves.
This way my sudden of guilt shall be reduced if not removed and also my married life, which started just three years ago, shall resume and my wife shall start her practice in this Hon'ble Court.
I have already been in custody since 7 th December 2017 for offences punishable with three years imprisonment. The offence is of writing of facebook on the page attributed to my name, about Surbhi CHS.
I am 52 years old and have to father a child as also have to look after my aged mother who is 75 years old.
I pray for mercy to this Hon'ble Court, as I tender my sincere apologies for being irresponsible in my duties towards this Hon'ble, Pious institution." 38 A perusal of the offending posts would demonstrate that these are "publication" and falling within the clear language of the provision. The language of section 2 clause (c) is plain and unambiguous. If criminal contempt means the publication of any SRP 66/90 SMCP1.17.doc matter or the doing of any other act whatsoever, then, these are nothing but publications and the content thereof so also the acts in relation thereto, scandalise and lower the authority of this Court. Further, they interfere and obstruct the administration of justice. There is a clear mandate flowing from the law and namely that this law is enacted for keeping the administration of justice pure and undefiled. This is a jurisdiction to maintain the dignity of the Court at all costs. By naming Judges individually, sitting and retired, and casting aspersions on their character, integrity and impartiality, the respondent is guilty of criminal contempt. This is not a mere defamation of a Judge/s otherwise than in discharge of his or her duties as such. This is a clear case of scandalising and lowering the authority of the court itself. By targetting the Judges of this Court, the respondent is scandalising and lowering the authority of the Court itself. It is well settled that a High Court is the highest Court in the State. It is not the last or the final Court, but is a Court conferred with Original, Civil Appellate, Criminal Appellate and Constitutional jurisdiction, The High Court is a creature of the Constitution itself. The High Court of a State is an important part of the judicial set-up established by our Constitution. This Court is approached by SRP 67/90 SMCP1.17.doc lakhs of litigants who are aggrieved by the actions and orders of the State Government, quasi-judicial authorities and judicial tribunals, subordinate Courts trying civil and criminal cases. This Court is also conferred with supervisory jurisdiction under Article 227 of the Constitution of India. Its powers are both supervisory and administrative. It ensures that every Court or Tribunal subordinate to it acts within the limits of its authority, power and jurisdiction. It corrects erroneous orders and illegal actions of Courts and Tribunals and that of statutory authorities and the Government. It being endowed with wide and enormous powers is, in the true sense of the term, a guardian and trustee of the public and ensures that the constitutional guarantee of justice to all is well and truly fulfilled. Its position and status being as above, by the impugned publications, the reputation and image of this Court itself is tarnished immensely. The public trust and confidence would be totally shaken if due cognizance of such publications is not taken and the person publishing the same is not proceeded against for contempt, that trust and confidence will erode further.
39 A bare perusal of the affidavits and the relevant SRP 68/90 SMCP1.17.doc paragraphs of the same reproduced above, leaves us in no manner of doubt that the respondent has not denied that these posts appear on his Facebook profile. He has not denied the contents or the matter which is looked by us in its entirety. It is read as a whole. He has not disputed that these posts emanate from and appear on his Facebook profile. Once he has unequivocally admitted these basic facts, then, the law does not require us to hold a full-fledged trial. The respondent is well educated and is aware of the consequences of the publication attributed to him. He is not a layman, but is well versed and aware of the law. As is admitted by him, he has approached this Court on several occasions by filing PILs. He has also sought to protect his life and liberty by approaching competent criminal Courts. There is no doubt in our mind that the respondent having carefully perused the draft of his affidavits, finalised them, appended his signature on them, duly affirmed the same and tendered them on the record of these proceedings. The language of these affidavits is downright vulgar and spiteful. The respondent is drafting the pleadings and arguing the case himself. In the PILs and other legal proceedings filed by him, we have seen him appear in person. He has not disputed, much less, SRP 69/90 SMCP1.17.doc denied or disowned any portions or paragraphs of the affidavits in reply. Our orders reproduced above would go to show that these affidavits were perused by us in open Court with his assistance and we have, at his request, deleted the portions or the paragraphs from these affidavits and excluded them from consideration. The respondent on his own indicated the paragraphs or the portions of the affidavits which have to be retained or deleted. The retention as also deletion has been done in his presence. There is no remorse and being aware and conscious of the consequences, the respondent requested this Court to accept and read the affidavits filed by him in reply as his defence to the suo-motu action.
40 Our orders and directions, as reproduced above, would denote that all procedural safeguards have been followed despite the post on the Facebook profile being objectionable, full of vulgarity, lacking in decency and decorum and amounting to outright vilification, we have not for a minute lost our cool or composure. We told him in open Court that he is free to canvass his submissions. We gave him a detailed and proper hearing. During the course of his arguments, we hardly interrupted him. SRP 70/90
SMCP1.17.doc After making him aware of the nature of the proceedings, all that we did was to patiently hear him out. The portions or paragraphs of his affidavits in reply as retained and reproduced, amounts to aggravated contempt. In other words, the contempt is aggravated by these further reckless and irresponsible statements. There is absolutely no material placed before us by which we can hold that sections 3, 4, 5 and 6 of the Act are attracted. It is well settled that judgments are open to criticism but that must be done without casting aspersions on the Judges and the Courts and without adverse comments amounting to scandalising the Courts. The liberty of free expression is not to be confused with a licence to make unfounded allegations of corruption against judiciary. 41 The respondent may have moved this Court by filing PILs highlighting the issue of allotment of public lands and properties in the exercise of discretionary power of the State Government and Chief Minister to selected and influential persons allegedly. The respondent may have filed PILs challenging the allotment of land or public property to Cooperative Housing Societies of Judges or, as he projects, he may be allegedly aggrieved by an adverse judicial order, but that does SRP 71/90 SMCP1.17.doc not permit him to mount a scurrilous and reckless attack on Presiding Officers and Judges. He has chosen lady Presiding Officers and Judges and targetted them personally. He says that they are vulnerable and can be easily exploited for favourable judicial orders. This is a very serious charge and one who makes it carries the burden to establish and prove it to the hilt. The respondent does nothing of this kind. He releases Facebook posts and puts his comments and remarks, on the Judges and judiciary, in public domain. He circulates them with purpose. He parades himself, both as a hero and victim at the same time and seeks public sympathy. He seeks applause and praise from the public as well as sympathy, all at the same time. The respondent does this systematically, but we cannot forget that this is at the cost of the prestige, dignity and reputation of the judiciary which includes this Court. This Court performs several duties and obligations, including taking cognizance of complaints against members of the District Judiciary. This Court is also entrusted the functions and duties in terms of Articles 233 to 235 of the Constitution of India. The power of control conferred by Article 235 of the Constitution carries with it the duty and responsibility to protect honest, hardworking and industrious Judges and Presiding Officers. SRP 72/90
SMCP1.17.doc However, when it comes to this Court and its Judges, if anybody indulges in acts amounting to criminal contempt, then, the law of the land empowers this Court to take cognizance and proceed to punish the guilty. Though we have proceeded to issue a suo-motu notice in contempt, we refrained from terming the respondent as contemnor either during the course of these proceedings or in this judgment. We have not stooped to the level to which the respondent has and we would never do so. However, if the respondent feels that he can get away by such publications or by filing affidavits aggravating the contempt, then, he is sadly mistaken and it is our duty to ensure that neither the respondent nor anybody ever gets this impression. They must not entertain any doubts nor ever think of being pardoned if they indulge in the acts of the present nature. It is time to remind parties before this Court and litigants in particular that Courts of Justice are set up and established so that none suffers injustice. None should feel helpless if his legal and constitutional rights are trampled upon even by the mightiest, including the State. Such acts of the highest Executive and political functionaries are open to challenge by approaching the competent civil and criminal Courts and equally the constitutional Courts. A right cause brought in a SRP 73/90 SMCP1.17.doc lawful manner before a Court will seldom go unnoticed. When we reach out to the people and ensure access to justice, we have an equal duty to come down heavily on those who pollute the system. The stream of justice must be pure and every impurity, dirt and stain thereon has to be removed. Equally, the hurdles and obstructions in the path of justice. The acts of the present nature are increasing. This is the recent trend and in the garb of criticising judgments, Judges are personally attacked on Facebook posts and social media. Members of the judiciary, the defence forces and the police are ridiculed and disrespected openly. They do not and rather cannot utter a word in defence. They do not have the freedom or liberty to appear before the public and give explanations. That does not mean that they are helpless. They do not speak because they are aware that Judges perform a sovereign and regal function. Administration of justice, Maintenance of Law and Order and Defence of India are Sovereign and Regal functions. They cannot be outsourced. Therefore, the members of the judiciary are not looking out for protectors or defenders. The law casts a duty on the Judges themselves to protect the dignity and reputation of the Courts of Justice. The Courts of law deciding a cause in a judicious manner, SRP 74/90 SMCP1.17.doc well and truly perform a divine duty of rendering justice. If that is guaranteed by the Constitution and by the laws and the Judges take oath to uphold both the Constitution and the laws, then, they must and are expected to perform even unpleasant tasks of censuring and punishing persons like the respondent. If the Judges fail to do so, they would be betraying the trust and confidence reposed in them by the public at large. The Judges are looked upon for their independence, impartiality, their commitment to the cause of justice. Our freedom fighters and Constitution framers have worked hard and suffered as well to give to all of us the institution of judiciary. If that fails, there will be total anarchy and chaos. It is to fulfill the hope and expectation of the public from the judiciary that the law endows it with powers to punish for its contempt. The Judges are not taking recourse to this law to protect their own reputation. They are performing a painful task to safeguard and protect the institution itself. None of us are above the institution and it is because of the institution of judiciary that we have got an opportunity to serve the people. We dedicate ourselves to the cause and service of public and particularly the innocent, illiterate and poor sections of the society who silently suffer and SRP 75/90 SMCP1.17.doc bear injustice. We make every attempt to reach them and it is their faith and trust in us which enables us to stand unitedly for them.
42 The respondent relied upon the judgment of the Hon'ble Supreme Court of India in the case of Tehseen Poonawalla vs. Union of India and Ors. Reported in (2018) 6 SCC 72. After perusing this judgment carefully, we do not see how this judgment has any application to the facts and circumstances of this case. 43 Then, he relied upon the judgment of the Hon'ble Supreme Court in the case of Indirect Tax Practitioners Association vs. R. K. Jain reported in (2010) 8 SCC 281. A careful perusal of this judgment would reveal that on the facts of that case, the Hon'ble Supreme Court found no objection in the writing/publication. The judgments or the actions were found to have been criticised in good faith. Mr. R. K. Jain, against whom the proceedings were initiated, was not found to have indulged in an act amounting to scandalising the functioning of the Customs, Excise and Service Tax Appellate Tribunal. The respondent therein had highlighted what he perceived as irregularities in the SRP 76/90 SMCP1.17.doc transfer or postings and appointment of members. Hence, his criticism was not found to be obstructing the course of justice either. It is in that peculiar situation that the contempt proceedings were dropped and rather the contempt petition was dismissed.
44 The judgment in the case of Rajendra Sail vs. Madhya Pradesh High Curt Bar Association and Ors. reported in (2005) 6 SCC 109 far from assisting the respondent, would militate against his stand. There, the Hon'ble Supreme Court cautioned that every act of this nature must be considered in the backdrop of the potential to cause harm and prejudice to the administration of justice. In fact, the criticism of the judgment should be measured, restrained and not crossing the limits of sobriety. The Hon'ble Supreme Court has clearly drawn the line in this context and the respondent would read the judgment not in its entirety, but relies on some paragraphs of the same. The part relied upon by him would support our conclusion. In fact, the Hon'ble Supreme Court reiterated the above principles and upheld the High Court order, but came to the conclusion that the conduct of Mr. Rajendra Sail was otherwise exemplary. That was because he SRP 77/90 SMCP1.17.doc brought many public interest litigations for general public. Hence, while the Hon'ble Court did not interfere with the order of the High Court holding Mr. Rajendra Sail guilty of contempt, merely reduced the punishment from six months to simple imprisonment of one week. If the respondent relies upon this paragraph in the hope that he can get away with lesser punishment, he is mistaken. He has not relied upon this judgment for this purpose. He has relied upon this judgment primarily in support of his contention that members of the public or even litigants have a right to criticise the judgments of this court and equally right to comment upon the conduct of judges. It is true that the freedom of speech and expression may permit this course to a citizen, but every such freedom is restricted and if the criticism is found to be indecent, harmful and reckless to such an extent as would cause irreparable harm and damage to the institution itself, then, merely because a person like the respondent before us may bring cases in public interest before this court and raise issues of general and larger public importance that does not give him a licence or permit to launch an attack on personal character and calibre of the Judges. Even the citizens must realise that public servants, as the Judges are, they cannot SRP 78/90 SMCP1.17.doc be insulted and humiliated and they would not suffer indignation, insult, injury nor would they tolerate a attack on their conduct and functioning as a Judge, if that scandalises the court or obstructs the course of justice. It is the administration of justice, which is paramount and while performing that duty of rendering justice that a Judge is armed with the necessary powers, including imposing punishment for contempt of the court. A Judge does not defend himself or seek to protect himself personally, but when he proceeds in this manner, it is to subserve a larger cause, namely, maintaining dignity and reputation of the institution of judiciary. Hence, we do not think that the respondent can capitalise on his acts of filing some PILs in this court or assisting this court in deciding issues of larger public interest. Hence, reliance on this judgment is also misplaced. 45 We have deliberately blanked out the names of the sitting and retired Judges of this Court from the reproduction of the contents of the Facebook posts for the simple reason that we do not find that it is necessary to mention them. Suffice it to say that we have avoided to mention these names so that there is no embarrassment and unnecessary harassment to them. The SRP 79/90 SMCP1.17.doc language and the contents of the publication does not deserve even its reproduction in this judgment, but we deem it necessary to do so. That is only to emphasise how low people like the respondent can go while attacking the Judges of this Court. If people stoop to such a level, then, ignoring such publications is simply not possible. That would encourage others. Hence, in order to curb this tendency of publishing malicious and defamatory material on the Facebook profile and social media in general, the suo-motu notice was issued. It is not even the case of the respondent that the posts or material on his Facebook profile is not a publication as understood in law. Having admitted that it is indeed a publication and its content is highly objectionable and contumacious, this notice and the proceedings in furtherance thereof will serve as a stern warning to users of social media. The modern technology and state-of-the-art devices of communication should not result in the abuse of the freedom of speech and expression. All concerned need to bear in mind that the Indian Constitution places reasonable restrictions on this freedom and, by clause (2) of Article 19, allows the State to make a law and rather assists in effective implementation of any existing law, if such law imposes reasonable restrictions on the exercise of the SRP 80/90 SMCP1.17.doc right conferred by sub-clause (a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Being a member or user of social media thus confers no licence nor a wholesale permit to cross limits of decency or morality or committing a contempt. One cannot defame others in the name of freedom of speech and expression. That freedom is not so absolute as is now thought to be, but subject to a reasonable restriction as enunciated above. Rumour mongering, loose talk, denigrating and attempts at destroying institutions like the judiciary would never be tolerated. The law and the Constitution frowns upon it. Once Judges take the oath of upholding the Constitution and the law, then, we have to ruthlessly come down on blatant violation of both the Constitution and the law. That is but the duty of a Judge and none should forget that we are bound to perform it. By delivering this judgment and order we have merely performed it. It must be immediately clarified that we derive no pleasure in passing such judgments and orders, but we are compelled when so-called educated people cross all limits. If the Government of the day SRP 81/90 SMCP1.17.doc does nothing to prohibit social media users from indulging in acts which the Constitution and the law does not allow and expressly frowns upon, that does not mean that the judiciary will take no action. Let everybody know and be aware that judiciary is not helpless. That it weilds enormous powers, including to punish for its contempt, but it exercises them sparingly, does not mean that it could be a soft target. We wish to remind members of the public and particularly the social media users that in the event they continue tarnishing and maligning the judiciary and Judges, a day will come when none will come forward to protect them and their properties. It is only when one's right to life and liberty is invaded or is in peril that one remembers the police machinery and the judiciary. If one defaces and defiles the institutions or pollutes these streams, then, there would be no rule of law. That would be a sad day and we must avoid that at all costs.
46 It is with a definite object and purpose that Part IV-A was inserted by the Constitution (Forty Second Amendment) Act, 1976 with effect from 3rd January, 1977. This Part contains Article 51-A entitled as 'Fundamental Duties'. It says that it shall SRP 82/90 SMCP1.17.doc be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions; the National Flag and the National Anthem and to cherish and follow the noble ideals which inspired our National struggle for freedom. 47 If it is the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, then, his conduct ought to be accordingly. Today, unfortunately, unmindful of this fundamental duty, a large number of citizens are disobeying and defying judicial orders which means disrespect for the institution of judiciary. This is done in the garb of the right of free speech which includes criticism. However, criticism and contempt are altogether distinct concepts. The latter is Constitutionally and legally impermissible. A time has come to remind them that as held by the Hon'ble Supreme Court when there is a restriction placed on the fundamental rights and particularly of freedom of speech and expression, that restriction would have to be tested on the touchstone of not just the directive principles of the State policy, but fundamental duties as enshrined in Article 51-A of the Constitution as well. That plays a significant role (State of Gujarat Vs. Mizapur Moti Kureshi SRP 83/90 SMCP1.17.doc Kassab Jamaat, (2005) 8 SCC 534). We only hope that disrespect, disobedience and defiance would not lead to destruction and wiser counsel will prevail. 48 Before we part with this judgment, we ought to remind ourselves that as Judges and Presiding Officers and discharging a public duty, there is bound to be public criticism of our judgments and our overall conduct. To avoid such Facebook publications and eventual hostility of the public, we must be mindful of the observations of the Hon'ble Supreme Court of India. The Hon'ble Supreme Court has already spoken for the public by highlighting their hopes, aspirations and expectations from the judiciary. In the case of Tarak Singh & Anr. vs. Jyoti Basu & Ors., AIR 2005 SC 338, this is what the Hon'ble Supreme Court held :
"20 It is also contended by Mr. Ganguli, that a large number of Judges of High Court and Supreme Court have also been allotted plots in Salt Lake City under the discretionary quota of the Chief Minister and it will be unfair to single out respondent No. 24 for meting out a different treatment. At the time of hearing of this writ petition, we requested the learned Senior counsel to inform us whether any other Judge or Judges obtained the allotment order from the discretionary quota of the Chief Minister by compromising his judicial duties, we would SRP 84/90 SMCP1.17.doc also proceed against such allottee. He, however, was unable to receive any instructions in this behalf. It is trite, unequals cannot be treated equally.
21 It must be grasped that judicial discipline is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself. Because of the position that we occupied and the enormous power we wield, no other authority can impose a discipline on us. All the more reasons Judges exercise self discipline of high standards. The character of a Judge is being tested by the power he wields. Abraham Lincoln once said, "Nearly all men can stand adversity, but if you want to test a man's character give him power".
Justice delivery system like any other system in every walk of life will fail and crumble down, in the absence of integrity.
22 Again, like any other organ of the State, judiciary is also manned by human beings - but the function of judiciary is distinctly different from other organs of the State - in the sense its function is divine. Today, judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors failed people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a Judge is being judged with more stricter than others. Integrity is the hall-mark of judicial discipline, SRP 85/90 SMCP1.17.doc apart from others. It is high time the judiciary must take utmost care to see that temple of justice do not crack from inside, which will lead to catastrophe in the justice delivery system resulting in the failure of Public Confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside.
23 Since the issue involves in the present controversy will have far reaching impact on the quality of judiciary, we are tempted to put it on record which we thought it to be a good guidance to achieve the purity of Administration of Justice. Every human being has his own ambition in life. To have an ambition is virtue. Generally speaking, it is a cherished desire to achieve something in life. There is nothing wrong in a Judge to have ambition to achieve something, but if the ambition to achieve is likely to cause compromise with his divine judicial duty, better not to pursue it. Because if a judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be tendency to compromise between his divine duty and his personal interest. There will be conflict in between interest and duty. This is what exactly has happened in this case. With due respect to the learned Judge, Justice B.P. Banerjee, he has mis-used his divine judicial duty as liveries to accomplish his personal ends. He has betrayed the trust reposed in him by the people. To say the least, this is bad. The matter could have been different if the learned Judge got allotment from the Chief Minister's quota simpliciter like any other citizen. SRP 86/90
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24. In the back-drop of the facts and circumstances, as recited above, we are of the view that the conduct of the learned Judge is beyond condonable limits. We are aware that the order, we propose to pass, no doubt is painful, but we have to perform a painful duty to instill public confidence in the Judiciary. It is a case where a private interest is pitted against a public interest. It is now well- settled principle of law that in such cases the latter must prevail over the former. Consequently, the order dated 24-7-1987 passed by the Chief Minister and the formal allotment order dated 16-10-1987 allotting plot No. FD 429 measuring 4 Cottahs in Salt Lake City in favour of respondent No. 24 Justice B.P. Banerjee are hereby quashed and cancelled. The plot shall stand vested with the Government."
49 Therefore, to avoid a onslaught, attack on Judges and judiciary in general, we deem it fit and appropriate to emphasize that the foundation of an impartial and independent judiciary is the public trust and confidence. That should not be shaken, much less eroded at any cost.
50 As a result of the above discussion, we are of the firm opinion that the respondent may pray or beg for an apology, but as is clear from the law itself, apology goes to sentence and not to SRP 87/90 SMCP1.17.doc contempt. That is no answer to charge of contempt. That is but saying sorry and seeking pardon or praying for lesser punishment. Even that aspect has been considered by us carefully. We have not deviated from the law or rules merely because our colleagues, present and ex, are attacked. We have, on independent and impartial application of our mind to the facts and circumstances, arrived at a conclusion that the respondent is guilty of criminal contempt. That his apology is not only belated but lacks bona fides as well. It is only when he realised the grave and serious consequences of his acts, including the possibility of imprisonment, that he faintly attempted to demonstrate that he was not in the right frame of mind and was driven by anger, frustration and dejection in view of certain developments in his personal life. He tried to urge that now he repents and wants to settle down in life. He does not wish now to target anybody and he has realised his mistake. He highlighted orally his social work, painted himself as a true patriot depicting his unflinching loyalty to the Nation. He says that he had been to Jammu & Kashmir and tried to reach out to the people in that State when they were in difficulties and problems, particularly in the face of a natural calamity. All this fails to impress us. All this comes when he SRP 88/90 SMCP1.17.doc disowns nothing, but admits everything. He retains everything that is offending, malicious and contumacious in his pleadings. Hence, we are of the opinion that the respondent does not deserve any sympathy. There are no mitigating circumstances at all. The respondent deserves severe punishment. Today, a punishment also fails to deter parties like the respondent. Sub-section (1) of section 12 enables this Court to exercise its discretionary power to punish for contempt, but says that a contempt of court may be punished with simple imprisonment for a term which may extend to six months or a fine which may extend to two thousand rupees or both. The proviso to sub-section (1) of section 12 says that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. The explanation to sub-section (1), however, says that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. There is no occasion to apply this explanation to the case at hand. The apology may not be qualified or conditional, but it is certainly not bona fide. At the same time, we are mindful of the mandate of sub-section (2) which says that notwithstanding anything contained in any other law for the time being in force, no Court shall impose a sentence in SRP 89/90 SMCP1.17.doc excess of that specified in sub-section (1) for any contempt either in respect of itself or of a Court subordinate to it. We are not required to refer to other sub-sections of section 12. Suffice it to say that considering the facts and circumstances in their totality, we deem it fit to impose upon the respondent penalty of simple imprisonment of three (3) months and a fine of two thousand rupees. We order accordingly.
A.S. OKA, J.
S.C. DHARMADHIKARI, J.
R.M. SAVANT, J.
SRP 90/90