Kerala High Court
Guruvayar Devaswom Managing Committee vs Pritish Nandy And Anr. on 2 December, 1985
Equivalent citations: 1987CRILJ192
ORDER K. Sukumaran, J.
1. Guruvayur Temple has been for long, a place of attraction for those having religious devotion. In recent times, around it there has been a sporadic spate of litigation. The present petition hab connection with a cross section of such legal actions. A recent publication, made a charge about the politicisation of the religious institution. That is the provocation for the present contempt petiton. It is supported by a statutory sanction, though in relation to a portion of the accusation.
2. The brief petition levelled accusation against the Editor and the Reporter of the Illustrated weekly, respectively respondents 1 and 2. Though six charges have been referred to in the Memo of Charges and paragraph 3 of the petition, only charges 1 and 3 are covered by the sanction- of the Advocate General.
3. This Court ordered notice on the petition on 5-8-1985. The 2nd respondent filed his counter-affidavit on 13-9-1985. The case came up for hearing on 3-10-1985. It was partly heard on that day. On 4-10-1985, C.M.P. No. 27622 of 1985 was filed by the petitioner seekiagacceptance of the additional affidavit end reception of additional documents produced therein'as Exts. P4 to P6. By a separate order, we have dismissed that application. On 7-10-1985, a petition C.M.P. No. 27825 of 1985 was filed by the 1st respondent seeking permission of the court to file a separate counter-affidavit on his behalf. This petition too has been dismissed by us by a separate order. A reply affidavit has been filed on 12-11-1985 with C.M.P. No. 31232 of 1985, a petition to condone the delay in filing the reply affidavit. That petition has been allowed. The averments contained therein and the materials produced therewith would be considered in the proper setting.
4. It is perhaps desirable to refer to some background facts, for a fuller and proper appreciation of the complaint of the petitioner and the defence of the respondents as disclosed by the pleadings and elaborated in the course of the arguments.
5. The temple and its administration had been involved, during the immediate past in diverse litigation; some touching financial administration such as the investment of the Devaswom funds; some relating to a crime in relation to some of the jewels of the deity entrusted with the principal priest, which he had failed to accout at the time of the termination of his tenure of office.
6. The Devaswom is in receipt of substantial funds by way of offerings from the devotees and otherwise. They used to be deposited in the Dhanalakshmi Bank, one of the scheduled banks in the State. A decision of the management to withdraw the deposits from that bank, had given rise to O.P. No. 6906 of 1984 filed in August, 1984. The litigation was then pending. Allegations of irregularities in the management of the properties of the temple, including the lease arrangements of the rooms in the newly constructed shopping complex find a place in another writ petition filed in February, 1985.
7. The disappearance of the sacred and valuable jewels of the Deity, also created sensatioa Criminal action was set in motion by the month df April, 1985. The priest and his son came to this Court seeking anticipatory bail. Bail was granted on 19-4-1985
8. The Chef Minister of the State plays a pivotal role in region to the afMirs and administration of the religious institutions jn thf State. His activities had come in, for copious comments, both in his capacity as a Minister in charge of the portfolio of Hindu religious institutions as also as the Chief Minister, at the helm of affairs of the administration of the State. An amendment was made to the Travancore-Cochin Hindu Religious Institutions Act, in 1985 under Ordinance No. 86 of 1984. This has led to proceedings before this Court under Article 226, (O.P. Nos. 9651, 9692 and 9718 of 1984) wherein its constitutional validity had been challenged. A Full Bench of this Court upheld the Ordinance in the decision Krishnankutty v. State of Kerala .
9. The offending article with the caption "Temple of Gloom" was published in the issue of the Weekly dated 30-6-1985. According to the petitioner, the Reporter, in making a report in the manner he did, has committed criminal contempt. As with the tale maker, so with the tale bearer; the Editor who published the article is equally guilty contends the petitioner.
10. The charge in respect of which the Advocate General granted sanction deserves closer scrutiny. The other charges may stand on a different footing, legally and otherwise. We shall therefore examine, in the first instance, the two charges supported by the sanction. The charges are:
(i) On April 18, the Crime Branch took over the case (of the missing Jewels). But when its sleuths descended on Guruvayur they found that the wily high priest had tapped his political connections to secure anticipatory bail (P. 32 Col. 4).
XX XX XX XX XX
(iii) Karunakaran introduced an ordinance compelling all aspirants to temple committees to declare their belief in God, obviously exploiting the atheistic posture of the Communists. The matter was taken to the High Court which ruled in favour of the Chief Minister. (P. 33 Col. 2) We shall now deal with the two charges in their order.
11. Scandalisation of a Judge df this Court is the gravamen of the first bmuge. Iris stated that the statement in the Article that the high priest was able td Secure anticipatory bail "by tapping his political connections" would lower the dignity of the Judge and the administration of justice. The petitioner states that the remark is unwarranted, and derogatory and is-made with the ulterior motive of lowering the dignity and prestige of the Hon'ble Judge, who had disposed of the anticipatory bail, and that it is an intentional assault on the fair name of the court also on the integrity and impartiality of the learned Judge who passed the order.
12. The defence of the respondents is contained in paragraph 5 of the counter-affidavit. According to them, there was no mention of any Court in the passage. The whole accent was on politicians helping the high priest There was absolutely no intention to connect the politicians with any court in any manner. Explaining the setting in which the sentence occurs, it is asserted:
The judiciary never came into the picture.
Explanation was offered about the employment of the word 'secure' in connection with the anticipatory bail. According to them, the petitioner attributed to that word "an absolutely unintended meaning." That explanation is expatiated in the subsequent portion of that paragraph, and it ends by the statement:
The integrity and impartiality of any Judge was never questioned in the Article.
13. Counsel for the petitioner made an earnest attempt to make out a case in reporting and publishing the article, there was an obnoxious objective scandalising the Judge and tarnishing the reputation of this Court. The entire article was read and reread, in an attempt to impregnate many a word in that passage with a meaning which could not ordinarily be attributed1 to them. The background of the publication and events subsequent thereto were hammered on time and again to contend that words otherwise innocuous or innocent, got transmuted into epithets of scandal and a vitupuration against the Court. In particular, the collocation of the words 'political connections', and the word 'secure' in relation to the anticipatory bail had been emphasised. The word 'secure' in the context and in the background did have a generative sense, according to counsel. Itwas ubmitted that the antecedent and subsequent events should be taken note of (as was done in R. v. Glanzey, (1962) 38 Dom LR (2d) 402 and that the general attitude and conduct of the respondents should be adverted to. The involvement of the respondents in other petitions under the Contempt of Courts Act, 1971, and the apology tendered by the Editor and the punishment on the reporter in the case where this Court took suo raotu action against them, and the weekly figuring in other sensational news and publications were also referred to.
14. We do not think that we should be influenced by events, particularly subsequent events, in relation to which there have been raging controversy in the media. Nor shall the involvement of the respondents in other contempt petitions, affect our views in relation to the specific passages in respect of which the charge is now framed. The conduct of the respondents and the subsequent events, may have effect and impact, in certain areas, such as for example, the quantum of punishment, as and when the Court reaches the conclusion that there is a punishable contempt. They may not have a direct relevance on the question whether a particular passage which had been the subject matter of a specific charge does or does not amount to criminal contempt. As noted by the House of Lords, there is all the difference between unmeritorious conduct and a liability for punishment. (vide R. v. Kelly (1981) 2 All ER 1098 at 1100.]
15. The immediate background of the offending passage may now be briefly indicated. There among the 56 items of jewellery entrusted to the high priest aad usually stored in the temple safe were missing. It is stated that the Administrator had received information about the theft on the 1st of April, 1985. There is insinuation of inaction on the part of the Administrator between that day and the 8th of April, when, it is stated, the news had broken out. The managing committee had an emergency meeting on the 13th of April and on the basis of the decision reached therein, launched a complaint to the local police. The Crime Branch took over the case on the 18th. After the narration of the above facts, occurs (he offending passage, which, at the risk of the repetition, may again be reproduced:
But when its sleuths descended on Guruvayur, they found that the wily high i priest had tapped his political connections to i secure anticipatory bail.
16. On a plain and proper reading of the passage, we do not find in the passage any reference to a Judge or to this Court, or for that matter, to any Judge or to any Court. The passage certainly puts the wily priest and the political connections in bad light. With that, the court is not directly concerned. In given situations, political operations may meet with unmeritted condemnation. It is possible that the public, or a section of it at any rate, may get agitated about some reported political atrocities. They may rush to the Press or to the platform in what they believe to be an exercise for exposing the misdeeds. Politicians on the other hand may attempt to put up a facade against their dark deeds, which may escape the discerning scrutiny of even an investigative journalistic probe. These are, however, matters normally attendant on the generally associated with political activities, which ordinarily go unnoticed by the courts. I Attack on the reputation of a.person, j attributing to him an unholy connection with political personalities, and even tarring those in the political arena, whether they be clean or even otherwise dirty, are all exercises connected with such activities. Those who feel their reputation unjustifiably and illegally offended have the remedies open to them under law. Publications having the objectional ; features noted above, however, operate in a i plane different from and unconnected with the one in which the Courts are situate and the Judges operate. Neither the Judge nor the Court figures in the passage in the article, directly or visibly. It requires an imaginary bridge built around the concept of 'anticipatory bail', for, the offending passage to reach the Judge and the Court. It is impermissible for the Court to operate on such unreal grounds. If the passage does not, clearly and plainly bring to the fore a Judge or (lie Court, we shall not strain the words or indulge in a meaningless shadow chasing exercise, to somehow force out the image of -a Judgeorof a Court in that passage.
17. Nor are we able to attribute the wotd "secure1, a pejorative meaning, in that context The meaning of that word as occurring ill the Shorter Oxford Dictionary, in Websters Dictionary and in the Random House Dictionary was referred to in that connection.World Book Dictionary, Vol. 2 gives the following as one of its meaning: "to get by effort; obtain." The meaning is thereafter sought to be Ulusterated with reference to the use of that word in cognate situations. The illustrations are:
to secure the attention of an audience, to secure a hearing at Court. We have secured ; our tickets for the school play.
The word is used in relation to very many honest or honourable activities. An agent was "to secure a purchaser" in Geralch v.Pearson (1950) VLR 321. Mines and Quarries Act, 1954 (of the United Kingdom) made it the duty of every Manager "...to secure that any quarrying operations...are carried on so as to avoid danger from falls." The word 'secure was interpreted as "to achieve ; the result" in that context, vide Brazier v. Skipton Rock Co. (1962) WLR 471.
18. The word 'secure' occurs in many Articles in Part IV of the Constitution of India Article 30 obliges the State to secure a social order for the promotion of Welfare of the people. The newly added Article 39 A of the Constitution states:
The State shall secure that the operation of the legal system promotes justice....
Securing the right to work is one of those laudable ideals referred to in Article 41; in the same way as securing just and humane conditions of work is referred to in Article 42. The State shall endeavour to secure...to all workers...a living wage and other ideal conditions of work is the mandate of Article 43. The State is expected to secure the participation of workers iJFnhi. management of industries, under Article 43 A. Yet another prominent and purposeful Article Article 44 provides:
The State shall endeavour to secure for the citizens a Uniform civil code throughout the territory of India.
There cannot be any doubt whatever that the word 'secure' in one and all of these Articles, had been employed only in a good and proper sense of obtaining the different goals or objectives referred to in the different situations. The word 'secure' in sentence' cannot therefore be likened to a bird which fouls its own nest.
19. In the light of our above discussion, we are clearly of the view that the passage complained of does not scandalise a Judge or a Court. It does not either slyly or openly pelt a stone against the judicial structure. Even on microscopic examination and sustained analysis, the passage does not appear as a pollutant of the clear stream of justice.
20. We shall not proceed to consider the second of the charges in respect of which consent of the Advocate General has been given. It is to the effect that a Full Bench of this Court when it delivered the judgment upholding the constitutional validity of Ordinance 86 of 1984, was rendering a decision in favour of Shri Karunakaran. According to the petitioner, the passage may create in public mind an impression that Shri.: Karunakaran, Chief Minister of the State is in a position to influence the decision making process of the High Court There was an attempt to buttress that contention, by inviting our attention to the publication of a photograph wherein Shri. Karunakaran and a learned Judge of this Court are seen u worshipping in the Guruvayur temple. The caption to that photograph is 'Karunakaran' at Guruvayur, more than an ardent pilgrim'. The petitioner sees in it a malicious kink. Reference was also made to other passages . in the article, which attribute to the Chief Minister a domineering influence in the administration of the State, and the administration of the temple.
21. The petition states: "it is derogatory to uphold the judgment (sic) of the High Court as one in favour of tjie Chief Minister, who, incidentally, has nothing to do with the promulgation of an ordinance." The background of the litigation in which the ordinance by which the Travancore-Cochin Hindu Religious Institutions Act, 1950 had been amended is thereafter referred to. After referring to the Full Bench decision upholding the validity of the Ordinance, the petitioner states:
The respondents know very well that a Chief Minister for himself has nothing to do with the promulgation of an ordinance. The allegation is wild and reckless and designed to malign the fair name of this Hon'ble Court in the public mind.
22. The counter-affidavit filed on behalf of the respondents asserts that "absolutely no disrespect was meant to the High Court." The defence continues:
What was meant was only that the High Court upheld the validity of the ordinance. The reference of the Chief Minister was only' in his capacity as a symbol of Government. What was meant was only that the ordinance introduced by the Government was upheld by the High Court. The insinuation that it was designed to malign the fair name of this Hon'ble Court is strongly denied.
23. We shall briefly examine the background of the ordinance, the challenge against it, the decision of the Court, and the publication of the article.
24. Numerous temples existed in the former princely States of Travancore and Cochin. The Rulers of the former States had bestowed considerable interest in the well-being of those institutions in those days. The administrastion of the temples was a matter of discussion at the time of the merger of the two States in the Indian Union. As a result of the decision ultimately arrived at, the Travancore-Cochin Hindu Religious Institutions Act, 1950 was enacted. Thereunder, the administration of many; temples was statutorily vested in two 'Devaswom Boards' in the two States of Travancore and Cochin. Among the members of the Board are two elected representatives, one from an electoral college constituted of the Hindu members of the Legislative Assembly, and the other, of the Hindu Ministers of the Cabinet. For reasons with which we are unconcerned in this petition, the Government felt that the right to elect a member to such a Board from among the members of the Legislative Assembly need be given only to those who sign a declaration that "he believes in God and professes Hindu religion." The decision of the Government was given effect to by an Ordinance, one among the many ordinances promulgated and: re-promulgated in the State in the recent past. It was the constitutional validity of this Ordinance that was assailed and was ultimately upheld by this Court.
25. If in the above context, it is stated, with reference to such an ordinance, that Shri. Karunakaran introduced it and thatlhe High Court ruled in favour of the Chief Minister, would it in any manner attribute to the Chief Minister a pernicious influence over the High Court? We feel that the answer is in the negative. The passage would not in any way suggest a subservience which no Court worth the name would willingly be subjected to on the part of the High Court to the dictats of the Executive Head. The power to promulgate an Ordinance is a legislative power of the Government under Article 213 of the Constitution. Article 163 provides for a Council of Ministers, to aid and advise the Governor in the exercise of his functions, other than those of the excepted categories. That provision specifically refers to the fact that the Chief Minister is at the head of the Council of Ministers. The very appointment of other Ministers is based on the advice of the Chief Minister. In a sense, therefore, it could be said that the Government is one under the prime and principal responsibility of the Chief Minister for the time being. Under the cabinet system, a Prime Minister occupies a very important position. According tb John Morley "the Prime Minister is the key stone of the Cabinet Arch." He is the leader of his party; and invariably the leader of the House. He is Chairman of the Cabinet and coordinator of policy. Nothing of great importance is matured, or would even be projected in any department without his personal cognisance. The Prime Minister's pre-eminence is such that though ordinarily, "new policies are, in theory, the concern of the Cabinet", "the Prime Minister can, within limits, compel the acceptance of policies by announcing them publicly". Ttoe personality of the Prime Minister sometimes so predominates that even the party label gets pushed to the background: as was the case in the 1945 elections in England when the media highlighted the contest by employing words such as "Churchill Candidates", "Churchill and Chaos", and "Churchill and Laski". Even his figure and his features have their imprint in the popular mind "like Mr. Gladstone with his collars, Mr. Lloyd George with his hair, Mr. Baldwin with his pipes, and Mr. Churchill with his cigars." (See Cabinet Government by Ivor Jennings, Second Edition.) John P. Mackintosh in 'The British Cabinet' (Page'380) referred to the role which the Prime Minister had to play and said:
The office has become the directing centre, of the Government. If the occupant failed to fulfil his function, no other person or agency could adequately replace him....
In the federal structure of our Constitution, as regards the affairs of the State, the Chief Minister occupies a position comparable to that of the Prime Minister in the general scheme of a Cabinet Government. Viewed in that context, the Chief Minister can correctly be characterised as the symbol of the Government itself. The history of cabinet Governments would indicate that that Governments have been referred to or known by the name of the person who occupied the high office of the Prime Minister for the time being. He can legitimately claim credit where credit is due for the achievement of his Government. He has likewise to bear the cross of odium or approbrium for the malfunctioning of any segment of the Government. A decision upholding a Statute promulgated by a Government can be hailed as one in favour of the Chief Minister of the State; for he is the head of the Council of Ministers which conceived of the idea and gave it legislative form and life. A statement referring to the verdict of the Court in the manner as stated in the passage referred to in the article, cannot therefore be treated as scandalising the Court or tarnishing its fair name in public mind.
26. We are clearly of the view that the passages will not create in any reasonable mind, a low profile of a great institution, the High Court. We reject the contention that the passage amounts to criminal contempt as that term is defined in Section 2(c) of the Contempt of Courts Act, 1971.
27. The remaining charges, charges 2,4, 5 and .6, may now be dealt with. It has to be noted that in relation to these charges, the Advocate General has not deemed it fit to give his consent Under Section 15(1) of the Act. Nor has this Court felt any necessity for action suo-motu. It may be remembered that this Court had only recently taken serious note of an offending publication contained in the 'Weekly' and initiated contempt proceedings suo motu when it felt that such action was warranted to keep clear the stream of justice. It is true that even in a case where suo motu action for contempt is not taken, and where the Advocate General had declined to give his consent, this Court, when properly alerted, can consider action under the Act against the offending publications. However, the fact that the Advocate General had not considered it fit to give his consent would weigh with this Court as one of the aspects to be adverted to, in embarking upon an enquiry whether the statements complained of constitute contempt. Having regard to the various circumstances, we do not think that this is a fit case where this Court should undertake such an equiry. Charge No. 3 of the Memorandum of charges pertains to the withdrawal of deposits of the temple funds from the Dhanalakshmi Bank. The charge covers passages 2 and 5 mentioned in paragraph 3 of the petition. It is complained that the passages had the effect of prejudging matters and influencing the mind of the Judges, for the reason that those issues were involved in O. P. No. 6906 of 1984. That writ petition was filed on 7-8-1984 and was disposed of only on 4-9-1985. In the counter-affidavit, the respondents have stated that they had no knowledge of the pendency of the writ petition 0. P. No. 6906 of 1984. Charge No. 4 of the memorandum of charges, takes in two passages. They have been referred to as passages numbers 4 and 5 in paragraph 3 of the petition. They relate to the alleged irregularities in the allotment of shop rooms and in effecting the insurance of the gold and silver of the temple. Here again, it is complained that a prejudging is involved in view of the fact that the validity of such actions had been the subject matter of the writ petition, O. P. No. 1234 of 1985. And here too, the respondents take the stand that they were unaware of the pendency of that writ petition. The quasi-criminal nature of the proceedings has to be borne in mind in this context Taking into consideration various circumstances including the nature of the charges, the statement of the allegations, the materials made available to the Court along with the petition, the defence put forward, and the absence of a sanction of the Advocate General, we feel that a further enquiry into the aspects covered by these charges need not be pursued.
28. Our disinclination to pursue these charges, does not mean that we are convinced about the plea of ignorance of the pendency of the two writ petitions, O. P. Nos. 6906 of 1984 and 1234 of 1985 as put forward by the respondents. The plea on the face of it lacks credibility. It is wholly inconsistent with the expertise ordinarily associated with effective investigative journalism. It is unnecessary to deal further with this topic having regard to the totality of the circumstances.
29. It may be that the petitioner felt extreme annoyance at the way in which the temple administration had been attempted to be ridiculed by the article. He may justifiably feel, as did Brookfield more than a century ago that "the aristocratic literates are the tiresomest; the publishing, the vulgarest people one meets." (See 'The Cambridge Apostles; Page 57). The article refers, ad nauseum, to scandals about the temple administration, as for example when it states in column 2:
The scandal struck at the very heart." and later in the same paragraph:
Soon the contours of a torried scandal took final shape as a probing press jerked the government to institute an investigation by the crime branch.
The petitioner may feel that it is the article that is unnecessarily and unjustly scandalising the temple administration. This Court is not concerned with the feelings of those connected with the Weekly or others connected with the Temple. As for scandal, it is perhaps only necessary to recollect Sheridan's lines about it:
So strong, so swift, the monster there's no gagging:
Cut Scandal's head off, still the tongue is wagging.
(See The School for Scandal by R. B. Sheridan, Prologue)
30. Counsel for the petitioner repeatedly commented on the rash conduct of the respondents in the recent past. We have already dealt with that aspect earlier. We have assessed their conduct in a series of cases disposed of recently. We have held that both of them committed criminal contempt in effecting the publications referred to in that Case. They have escaped punishment for the only reason of the inadequacy of the charge and supporting statement of allegations. We trust that legal position has been made sufficiently clear and that the respondents will reasonably respond to the repetitive wamingspven to them. A vigilant Court is unlikely to miss these antecedent activities, should there be any further indiscretion on the part of the respondents, in encroaching upon areas of free and fair judicial functioning.
31. There is a passage in the Text Book of Criminal Law' by Glanville Williams, 2nd Edition, Page 38 reading:
We have discovered...that non-punitive disposal of the offenders are often better at preventing recurrence, or not worse, than a punitive sentence.
It is to'be hoped that the respondents would not necessitate a debate on the correctness of that opinion.
32. TWe dismiss the petition. There will be no order as to costs.