Andhra HC (Pre-Telangana)
State Of A.P. Rep. By The Advocate ... vs S. Tulasidas, Advocate, S. Sharat ... on 19 February, 2002
Equivalent citations: 2002(2)ALT461
Author: Goda Raghuram
Bench: Bilal Nazki, Goda Raghuram
ORDER Goda Raghuram, J.
1. The contempt case has been initiated Suo motu by a learned, single judge of this court against the 1st respondent for having lodged a complaint against the learned Judge concerned under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the 1989 Act"), for giving a complaint on 28-4-1999, to the Hon'ble the Chief Justice in respect of proceedings in the court and for issuing a notice to the learned Judge under Section 16 of the Contempt of Courts Act, 1971 (for short 'the 1971 Act'). Suo motu contempt proceedings have been initiated against the other respondents who are Editors, Publishers and Legal Correspondents of 'Andhra Jyothi' and 'Vaartha', which are vernacular daily news papers, charging them with publication of "slanderous contents" of the 1st respondent's complaint, in their news papers in a box item, which allegedly amounts to maligning the learned Judge in the public mind and having the effect of bringing the Court to disrepute.
2. As respondents 2, 3, 5 and 6 being Editors and Publishers respectively, of "Andhra Jyothi' and 'Vaartha' had expressed unconditional and unqualified apology to the court, the learned single Judge had himself by the order dated 7-6-2000 dropped the contempt proceedings against them directing them to publish the unconditional apology tendered, to the court in a box item in the front page of their respective newspapers, within a week from the date of the order. The apology has since been published in the respective news papers. No further proceedings are thus warranted as against the respondents 2, 3, 5 and 6.
3. The 1st respondent is also recorded of have expressed regrets, though equivocally. The counsel for the 1st respondent, however, is recorded to have categorically submitted that the 1st respondent offers his sincere apology. Therefore, the learned single Judge in the order dated 7-6-2000, after chastising the 1st respondent and administering a "stern warning", dropped further proceedings in the contempt case against the 1st respondent too. The contempt case, thus, survives as against the respondents 4 and 7 being the legal correspondents of 'Andhra Jyothi' and 'Vaartha'.
4. In respect of proceedings against respondents 4 and 7, the learned single Judge in the same order dated 7-6-2000, referred the matter to be heard by a Division Bench in view of the mandate of Section 18(1) of the 1971 Act.
5. The contempt proceedings arose in the following circumstances, set out in brief:
(A) The 1st respondent filed W.P. SR. No. 44682/99 as a party-in-person and appeared as counsel in W.P. No. 7467/99 filed by one B. Srinivasa Rao, an advocate. Both these writ petitions were directed against the recommendations made by the Hon'ble Chief Justice, of Members of the Bar for appointment as Judges of this court.
(B) These writ petitions came to be heard by a Division Bench of this court. As is apparent from the facts recorded in the order of the learned single Judge dated 7-6-2000, one of the learned Judges of the Division Bench (Sri B.S.A. Swamy, J.), apprehending from the language in the affidavits filed in support of the writ petitions, that it was not the first respondent who drafted the writ petitions and that the contents and language might have been of some other persons, appears to have called upon the 1st respondent to re-dictate one paragraph of the affidavit to the Court Master with a view to ascertain whether the writ petition has been drafted by the 1st respondent.
(C) Eventually the Division Bench dismissed the writ petitions with costs on 30-4-99 and also issued notice to the 1st respondent and the writ petitioner as to why sno motu contempt proceedings be not initiated for making slanderous attack on the Hon'ble Chief Justice as well as the recommendees.
(D) On 30-4-1999 itself the 1st respondent filed a complaint in the Charminar Police Station against Sri B.S.A. Swamy, J., under Section 3 of the 1989 Act complaining of violation of the provisions of the said Act in respect of the conduct of the learned Judge during the course of hearing of the writ petition, by the Division Bench. The 1st respondent appears to have also circulated copies of the complaint to the press. Respondents 4 and 7, who are legal correspondents of 'Andhra Jyothi' and 'Vaartha' published items in the respective news papers, in respect of the complaint made by the 1st respondent under the provisions of the 1989 Act.
(E) As the respondents 4 and 7 desired to pursue defence in the contempt case, the learned single Judge referred the contempt proceedings against the said respondents to the Division Bench in view of the provisions of Section 18 (1) of the 1971 Act.
6. The 4th respondent made his submissions in person and the 7th respondent through Sri S. Ramachandra Rao, learned Senior Counsel. Counter-affidavit has been filed by the 4th respondent and written arguments by the 7th respondent.
7. Respondents 4 and 7 urge a broadly common charter of defence, which runs, briefly thus:
These respondents are brothers and practising advocates. They profess a commitment to the rule of law and to upholding the majesty of the courts. They admit to have reported about the complaint given by the 1st respondent against a learned Judge of this court in the Charminar PS, and that the said report has been published in the press as alleged. They stated that the 1st respondent is a respected member of the Bar known for his forthright and outspoken comments and that the said respondent had circulated copies of the complaint said to have been given him to the Charminar PS, on 30-4-99.
8. It is 4th respondent's case that on the basis of the press release issued by the 1st respondent, the answering respondent reported the news item which appeared on 1-5-99 and that although there are certain discrepancies between the contents of the complaint and its translation as published in the press, those errors are insignificant and objective errors, which in any event do not constitute contempt. The 4th respondent further states in his counter-affidavit that he made no attempt to denigrate or scandalise the reputation of the learned Judge or of this court, that he merely reported the contents. It is further stated that there was no intent to sensationalise the incident that occurred and that it was only intended that the peculiar behaviour of the Advocate (1st respondent) in proposing to file a criminal complaint against sitting Judge of the High Court before a statutory authority under the Code of Criminal Procedure, should be brought to the notice of the public. This respondent also states that he reported the factum of the complaint made by the 1st respondent only after verifying that it was in fact made. Stating that he entertains no ill-will, rancour or disrespect towards the learned Judge and that reporting was not done with a view of scandalising, maligning or spoiling the image of either the learned Judge or this court.
9. The 7th respondent reiterates the assertions and averments of the 4th respondent adding further that no motives have been attributed in his report, to the learned Judge or to the court in discharge of its judicial functions, that no criticism of the learned Judge or the institution was intended and that the report has been made merely in discharge of his professional duties as a reporter with a view to disseminate the fact of the complaint to the public with a view to inform the fact to the public. This respondent states that as he has reported only the fact of the complaint having been made without any attempt to either scandalise or lower the image of the learned Judge or this court, and that his conduct does not constitute contempt within the meaning of Section 2 of the 1971 Act. This respondent also pleads that-
"Every news item containing contemptuous news cannot be brought within the parameters of Section 2 (c) of Contempt of Courts Act and the Newspaper, the Editor and the Reporter could not be punished for the same. In fact, such a course of action would lead to dangerous consequences such as throttling the voice of democracy. In fact, Contempt of Courts Act is not intended to curtail the freedom of speech and expression articulating the news fearlessly. On the other hand, the Contempt of Courts Act intends to protect the Hon'ble Judges and Hon'ble Law Courts from wilful and malicious vilification. Considering the dispute raised by the learned Judge in the above standpoint of view, there is hardly any contempt of court and the proceedings deserve to be dropped in the interest of justice."
10. The complaint made by the 1st respondent to the Charminar PS reads as under:
"I, S. Tulsi Das, s/o Late Thavitaiah, aged 49 years, occupation: Advocate, resident of H.No. 16-10-159/1A, Reddy Colony, Old Malakpet, Hyderabad-36, bring to your kind notice that on 28-4-99 while I was arguing a writ petition bearing W.P. Sl. No. 46682/99 before a Division Bench consisting of Hon'ble Mr. Justice B. Subhashan Reddy and B. Atchutananda Swamy, JJ., the accused person by name B. Atchutananda Swamy unnecessarily went beyond his limits in a fit of anger and insulted me in the open court asking me to give dictation to his steno so as to know whether I know English or not, when I was hesitating to write he forced me to do so and in state of shock I obliged. He also shouted at me saying "You black mail the Judge designatee? Who are behind you? Who prompted you? Tell me." When the Senior Judge was maintaining restraint, the accused took the lead and resorted to this atrocious action. The accused known me personally for so many years and he knows my caste also. I have lodged a complaint to the Honourable Chief Justice of High Court of A.P. and sent the copies to the President of India, and the Honourable The Chief Justice of Supreme Court of India. I was advised by the Legal experts that the action of the accused constitutes an offence under the provisions of S.C. and S.T. (Prevention of Atrocities) Act, 1989.
I submit that the accused does not enjoy any immunity as he committed the crime with an ulterior motive to insult me. The contents of my complaint may be read as part and parcel of this complaint. The accused does not enjoy any immunity or privilege as the Act has overriding effect of all other laws notwithstanding anything contained in any other Act. That the Accused caused annoyance and insult to an S.C. (Mala) like me which is an offence punishable under Section 3 (1) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. For unconstitutional action immunity clause cannot be used.
I request you to take cognizance of the offence committed by the accused B.S.A. Swamy son of not known, aged about 60 years, occupation: Judge of the High Court of A.P. r/o and punish him under the Provisions of the S.C. and S.T. (Prevention of Atrocities) Act, 1989."
11. The news item published in 'Andhra Jyothi' Telugu daily on 1-5-99 pursuant to the news report of the 4th respondent is to the following effect: (Translated from Telugu) "COMPLAINT BY ADVOCATE IN THE POLICE STATION AGAINST A JUDGE.
Alleging that he has been humiliated and subjected to mental agony in the open court, an Advocate by name Tulsi Das filed a complaint in the Charminar Police Station, against Justice B.S.A. Swamy, Judge of the High Court. The complainant requested for prosecution of Justice B.S.A. Swamy under S.C. and S.T. (Prevention of Atrocities) Act, 1989. An Advocate filing a complaint against a sitting Judge in the Police Station, has never occurred earlier. The complainant stated that he is known to Justice Swamy for a long time and that the learned Judge also knows that he belongs to Scheduled Caste. The incident which is stated to constitute his humiliation by the learned Judge as stated by Tulsi Das, occurred on the previous Wednesday.
Tulsi Das along with another advocate jointly filed a Public Interest Litigation case requesting to appoint temporary Judges for disposing of urgent cases and for reducing the pendency of cases. Tulsi Das also filed an affidavit challenging the modalities adopted by the then Chief Justice of High Court, Justice Umesh Chandra Banerjee in preparing the panel of advocates to be appointed as High Court Judges. He also questioned in the affidavit the individual qualifications and competence of some of the advocates who are in the said panel. This petition came up for hearing on the previous Wednesday before the Division Bench consisting of Justice Subhashan Reddy and Justice B.S.A. Swamy. In this connection Justice Swamy raised objection regarding some portions of the affidavit. He observed that they are in the nature of contempt of court. In this connection the Judge questioned the advocate Tulsi Das - "In fact have you prepared the affidavit or have others drafted?"
Tulsi Das also stated in the complaint that in addition to the above, to test his English knowledge, in the open court he was directed to give dictation to the Steno. He also stated that on the pressure of the Judge he agreed to give dictation. When Tulsi Das starting giving dictation, finding that the situation in the court is getting into embarrassing, the Senior Judge Justice Subhashan Reddy interfered and stopped Tulsi Das from continuing the dictation.
Having adjourned the petition on Wednesday for enquiry, the Judges dismissed the petition on Friday. Justice Subhashan Reddy observed that some contents in the affidavit are baseless and irresponsible. Having ordered that each advocate has to pay Rs. 5,000/- towards costs to the court, the Judges also initiated Contempt Proceedings against them."
12. The news item published in 'Vaartha' Telugu Daily on 1-5-1999 pursuant to the news report of the 7th respondent is to the following effect: (Translated from Telugu) "ADVOCATES COMPLAINT AGAINST JUSTICE SWAMY In the history of State High Court, for the first time an Advocate lodged a Police complaint against a Judge. Tulsi Das, Advocate, complained that Justice B.S.A. Swamy humiliated him and subjected him to severe mental agony. Tulsi Das complained in the Charminar Police Station on Friday seeking to prosecute Justice Swamy under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Tulsi Das stated that he was known to Justice B.S.A. Swamy for many years and also that he belongs to "Mala" Caste. Tulsi Das alleged that while arguments were going on in one case, Justice Swamy, to know whether the complainant knows English, asked him to dictate in English to his (Judge's) Steno, that, though he objected, he would not relent and thus forced, he gave dictation amidst severe consternation, alleged Tulsi Das. The particulars of the incident are as follows:
Tulsi Das and another Advocate challenged the decision of the then Chief Justice, Justice Umesh Chandra Banerjee, appointing temporary Judges for disposal of urgent cases in the High Court. The Division Bench consisting of Justice B. Subhashan Reddy and Justice B.S.A. Swamy, has taken up for hearing the Public Interest Litigation filed by them, on Wednesday. The objection raised by Justice Swamy regarding some contents in the affidavit, during the course of the hearing is the root cause for this controversy. To know whether the affidavit was drafted by Tulsi Das himself or whether it was got written by some others, Justice Swamy directed to give English dictation to his Steno. However, the other Senior Judge in the Division Bench Justice Subhashan Reddy, intervened and stopped Tulsi Das from continuing with the dictation.
The Division Bench dismissed the Public Interest Litigation on Friday holding that certain allegations made are baseless. The High Court has initiated suo motu contempt proceedings against the said two advocates and also directed them to pay Rs. 5,000/- each towards penalty."
13. Respondents 4 and 7 are advocates and also profess to pursue journalism as a career. In pursuit of the later avocation they sent news reports to their respective news papers 'Andhra Jyothi' and 'Vaartha', which are published on 1-5-99. Whether this publication amounts to contempt of the court is the issue.
14. The respondents contend that the freedom of the press is of seminal value in a democratic polity and that it is in pursuit of this freedom that they have reported the news item truly reflecting the complaint preferred by the 1st respondent in the Charminar PS against the learned Judge of this court and that exercise of their rights concomitant to the freedom of the press would not amount to contumacious conduct.
15. The press does not enjoy any exclusive rights under our Constitution apart from those enjoyed by a citizen as a concomitant of the freedom of speech and rights against unlawful deprivation of life and liberty guaranteed under Articles 19 and 21 of the Constitution. The press enjoys no special privileges to comment, criticise or even to investigate the facts of any case. The rights of press persons are not higher than that of the common man. In fact the responsibilities of a journalist are higher. The common man has limited means and reach in which he acts. A journalist on the other hand has a wider reach and power to disseminate information and therefore such power has the potential to cause irreparable damage to a matter under enquiry in a court of law or in a given case has greater propensity to scandalise or diminute the dignity, majesty or reputation of an individual or an institution.
16. A substantive area of the law of contempt is that which places restrictions on what may legally be published, because of the likely effect of the publication on the due administration of justice. This conflicts with the freedom of speech and although "publication" in this context has a wide meaning and is not limited to what appears in the media, the effect of the contempt laws on the freedom of the press make this a sensitive and controversial area of law. In reporting judicial proceedings and the functioning of the criminal and civil adjudicatory systems, the media serve a necessary role in an open and democratic society by keeping the public informed of what is being done in its name and of matters which are its proper concern. In India as in many common law jurisdictions the media is not a monolithic public service institution dedicated simply to upholding the principles of a democratic society. It is often a disparate collection of interests most of which exist for commercial purposes which are best served by maximising the size of the circulation or audience. It is undeniable that the reporting of shocking, scandalous or exciting events, particularly in a way which appeals to the popular imagination or prurience, increases circulation or viewing figures and this is an important consideration when newspapers are engaged in circulation wars. Hoffmann LJ pithily expressed this reality in R. v. Central Independent Television Pic, (1994) 3 All ER 641 that "Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage."
17. The status of the news media was described by Sir John Donaidson MR in A-G v. Guardian Newspapers Ltd. (No. 2), (1988) 3 All ER 545:
"I yield to no-one in my belief that the existence of a free press, in which term I include other media of mass communication, is an essential element in maintaining parliamentary democracy and the British way of life as we known it. But it is important to remember why the press occupies this crucial position. It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public.
They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed it is that of the general public for whom they are trustees."
18. The public interest involved in freedom of discussion (of which genus the freedom of the press is but a specie) springs from the value that members of a democratic civil society need to be sufficiently informed so that they may intelligently influence the decisions which may affect themselves. This is the value of the freedom and when the court is called upon to decide whether liberty should be depressed it should be anxious to steer a course as close to the preservation of liberty as possible. This is so since freedom of spviech is a hard-won and precious asset, yet easily lost. In adjudicating upon the contours of the freedom it is worthwhile to recall the words of Hoffmann LJ in Central Independent Television Plc (supra):
"....a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which Government and Judges, however well motivated, think should not be published. It means the right to say things which "right-thinking people" regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute...
it cannot be too strongly emphasised that outside the established exceptions (or any new ones which Parliament may enact in accordance with its obligations under the (European) convention) there is no question of balancing freedom of speech against other interests. It is a trump card which always wins."
19. In our constitutional scheme the freedom of press is but an emanation of the freedom of the citizen to the right of speech and expression. It is not an absolute or uncanalised right, but is subject to reasonable restrictions including in relation to contempt of courts. The right to free speech is a genuine societal interest in a democratic civil society and as such is but one of such interests though an important one. It cannot be held to be universally paramount over other interests. The prohibitions enjoined in contempt law against conduct tending to scandalise or undermine the majesty and dignity of courts is an equally important societal interest. As Lord Morris commented in Sunday Times case, (1974) AC 273 -
In an ordered community courts are established for the settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering 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 that their authority wanes and is supptanted."
20. Section 2 (c) of the 1971 Act defines criminal contempt, inter alia, as meaning the publication of any matter 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 manner. Section 3 of the Act enacts that publication or distribution of 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 proceedings pending at the time of publication, is not contempt if at the time of such publication the person publishing the same had no reasonable ground for believing that the proceedings were pending and also enacts that the publication of any such matter in connection with any civil or criminal proceedings which is not pending at the time of publication should not be deemed to constitute contempt of court. Section 4 of the Act enacts that a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof. Section 5 permits publication of any fair comment on the merits of a case which has been heard and finally decided.
21. The plenitude of the powers and jurisdiction of superior courts - the Supreme Court and High Courts, in matters relating to contempt are not delimited by the provisions of the 1971 Act. These powers are constitutional presents and the power of the High Court to proceed in contempt stems from it being a court of record and also from Article 215 of the Constitution of India. However, the broad contours of these powers and jurisdiction of the High Court are normally construed in harmony with the provisions of the 1971 Act.
22. The complaint preferred by the 1st respondent against the learned Judge of this court in the Charminar PS seeking initiation of action under the provisions of the 1989 Act was clearly calculated to overawe the learned Judge and this Court in respect of writ petitions filed by the said respondent and in which he was appearing as a counsel. This conduct emanated to gross contempt. Having regard to the contrition expressed by and on behalf of the said respondent, further proceedings in contempt against the said respondent was dropped by the order dated 7-6-2000 after administering a 'stem warning' to the said respondent. Respondents 4 and 7 acting upon the press release issued on 30-4-99 and circulation of a copy of the complaint by the 1st respondent, sent up a news report to the respective newspapers, which were published in the two dailies on 1-5-99. Respondents 2, 3, 5 and 6 - the Editors and Publishers respectively of the two dailies, having tendered unconditional apology, were similarly let off in the contempt proceedings by the order dated 7-6-2000 and they have also published apology in their respective newspapers. The publication of a complaint (which was clearly contumacious in character and intend to overawe and scandalise the court and the learned Judge) whether constitutes a criminal contempt on the part of the respondents 4 and 7 needs to be considered not merely in the context of it being publication of a contumacious material but also in the context of the circumstances in which the respondents 4 and 7 reported the news item, which led to its publication.
23. Respondents 4 and 7 profess to be advocates as well as journalists. The 4th respondent claims to be an advocate for over a decade and of having been associated with an "eminent counsel". The 7th respondent in his written arguments similarly claims to be a practising advocate. The familiarity with law including the law of contempt which these respondents must be presumed to have acquired during their claimed pursuit of the profession should have put them on guard as to the contumacious nature of the complaint made by the 1st respondent and of the contemptuous potential of its publication. It is, however their defence that they merely reported the fact of the complaint which they claim to be in public interest. It is therefore, their defence that the reporting has been bona fide only with a view to disseminate the news and not with a view to scandalise or diminute the authority and dignity of this court or of the learned Judge.
24. The publication which is the product of their reportage does amount to publication of contumacious material and to this extent the respondents 4 and 7 are liable for having committed contempt of this court.
25. In a case of civil contempt In Re Bramblevale Ltd., 1970 Chancery 128 Lord Denning MR stated-
"Contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase it must be proved beyond all reasonable doubt."
26. What has been stated by the learned Judge in respect of civil contempt is a fortiori applicable to cases of criminal contempt. This statement has been quoted with approval and the principle followed by our own courts including our Supreme Court in Chotu Ram v. Urvashi Gulati and Ors., 2001 AIR SCW 3208. The intention to commit contempt or mens rea is immaterial in a case of contempt of court. But it may be relevant in the context of the sentence to be imposed.
27. In the case on hand it would appear that the respondents 4 and 7 in their anxiety to report a salacious event to their respective newspapers sent up a report without adequate examination of either the contents of the complaint, its contumacious character or the pejorative impact the reportage and publication of such contumacious material would have on the dignity and majesty of this court. Despite their claims to professional standing at the Bar such conduct does not demonstrate the adequate degree of professional care that should inform counsel claiming such standing. The defence of the respondents 4 and 7 couched in the rhetoric of the values of the freedom of press and the need to inform the public, are seen to be puerile attempts to wriggle out of a sticky situation brought about by their inept pursuit of the journalistic profession. Their conduct is condemnatory and the publication contumacious. What then is the measure of punishment commensurate with their conduct in the totality of circumstances?
28. The arguments in this case were heard on 18th April, 2001 and the judgment was prepared much earlier but it was not pronounced with the fond hope that the respondents might repent their conduct and come to this Court with remorse. But, it appears that the respondents are adamant in their attitude and do not have any regrets for their conduct. We are also not sure whether the practising Advocates can take any other profession along with advocacy as the present respondents have done, they are at the same time working as journalists and Advocates. This makes their position also vulnerable because they have to be loyal to both and as a result they may find themselves in a position where they are not loyal to either of the two professions. It is for Bar Council of the State to look into the matter and see whether in terms of the Advocates Act and Rules made thereunder a practising Advocate can at the same time take up the profession of journalism.
29. It is always painful to convict persons in contempt. This power has been sparingly used from times immemorial and it should be used sparingly, but when no choice is left to the Court by the contemnors the Courts would not be discharging their duties to protect the dignity of the Court if they do not appropriately punish the contemnors.
30. For these reasons, we convict the respondents 4 and 7 for committing contempt of this Court, sentence them to one month's simple imprisonment. However, in the interest of justice the sentence shall remain suspended for a period of one year. If during this period the contemnors are punished again in contempt the order sentencing them shall become operative automatically, however, if they are not convicted for contempt during the period of one year the sentence shall not be carried.