Delhi High Court
Court On Its Own Motion vs The Pioneer on 6 March, 1997
Equivalent citations: 1997IIAD(DELHI)552, 68(1997)DLT259, 1997(41)DRJ564
Bench: M.J. Rao, Manmohan Sarin
JUDGMENT Manmohan Surin, J.
(1) On 7.9,96 a newspaper report appeared in the daily newspaper "The Pioneer" under the caption "Court hampering drive against construction mafia". It also carried a photograph of the then Lt.Governor with the notation under it as "Drive will continue: P.K. Dave". The said report was authored by correspondent Rahul Pandey. As the report in question is not a very lengthy one, it would be worthwhile to reproduce the relevant portions of the same: "DELHICIVIC bodies arc not able to lake action against unauthorized constructions in the Capital as the building mafia is 'abusing' the judicial system to their advantage, a top official of Delhi Government said. The Courts in Delhi give stay and status-quo orders, despite the fact that the Municipal Corporation of Delhi has a Tribunal and that Lt. Governor is the appellate authority," the official said."
(2) This notwithstanding, there have been instances where cases have been taken up not only at lower courts in Delhi but courts as far as Patna.
(3) The case in point, the official said, is the While House. The use of judiciary is evident in this case where the courts have issued some orders which do not have any precedence. "In one of the cases, the court ordered the area Station House Officer to ensure that the While House owners were allowed to get a connection from the water mains, after culling the road," the official said.
(4) Asked about why the Ndmc has not been able to demolish the lop four floors of lhe building, officials said the tenants were using lhe judicial machinery to their advantage. "All the 24 tenants have filed separate cases in courts and though we have made a plea to club all the cases, the court has declined to do so", the official said.
(5) But with the High Court dismissing the plea of the residents on Thursday, lhe Ndmc will be able to lake action, the official said.
(6) In addition to this, the official said the civic bodies have had to face considerable aggression at the hands of the building mafia, owing to the easily procurable stay orders from the judiciary.
(7) A local court gave a slay order in case of one of the buildings on Pusa Road and surprisingly, the MCD'S copy of the order was also given to the building concerned. The Mcd made preparations to demolish the building but lhe builder pulled out a copy of lhe order and the Mcd team had to return after suffering humiliation,: he said.
(8) LT. Governor Pk Dave, when asked about unauthorized constructions and encroachment, told The Pioneer the City Government has started its drive to locate land which is under encroachments. "The Additional District Magistrates are identifying these areas and action would start before September 15," he said."
(9) The balance portion of lhe News Report is not being re-produced as it deals with issues such as introduction of prohibition, ceiling on slaughter of animals at Idgah Abatoir, unauthorized killing of animals etc. (10) Upon perusal of the aforesaid news report, this Court on 18.10.1996, suo moto, Issued notice to the correspondent, Mr. Rahul Pandey, and the Editor of lhe newspaper 'The Pioneer', Mr. Chandan Mitra, to show cause as to why proceedings for contempt of court should not be initiated against them for publication of the aforesaid news report.
(11) A perusal of the above report, in our view, prima facie, manifested an intention to project the Courts in Delhi as passing stay orders against demolition action, without there being justification for such orders. It is staled that as a result of this, the construction mafia is put to an advantage and the drive against unauthorized construction initiated by the Civic Agencies suffers. We, therefore, issued notice.
(12) We had in the initial notice set out, in particular, the portions of the news report which, prima facie, appeared to be contemptuous and tended to lower and undermined public confidence in the administration of justice. These portions arc underlined in the report reproduced. These may be summarized as, the abuse of judicial system by builders to their advantage; grant of stay orders from lower courts and even from courts outside Delhi for properties in Delhi, even though there is a Special Tribunal and Lt. Governor is the Appellate Authority. Reference is made to the case of 'White House' as an instance of unprecedented stay orders. It is then reported that civic bodies face considerable aggression at the hands of building mafia due to "easily procurable slay orders from judiciary." The news report is purported to be based on information received from a senior functionary of the Delhi Government as well as the then Lt.Governor Shri P.K. Dave.
(13) Appearance was entered on 3.12.1996. Correspondent Rahul Pande filed an affidavit, tendering his unqualified apology in the following words: "I tender unqualified apology to this Hon'ble Court for publishing the aforesaid news report. I say that the publication was made in good faith and not with any malice or motive. I say that I have utmost respect and regard for the judicial system and express regret for having published the news item."
(14) The Court, however, required him to file an additional affidavit and furnish the basis for the newspaper report. He was also required to produce his notes of interview, if any.
(15) On 11.12.1996, an additional affidavit was filed by Rahul Pandey, reiterating the unconditional apology and claiming good faith, absence of malice or ulterior motive in publication of the report. As regards the basis of the newspaper report, it was stated in para (7) of the affidavit that "it was based on an interview with a senior Delhi government functionary on 3.9.1996 at 1.00 pm." Photocopy of the notes of interview were also produced. The respondent/contemnors claimed that the report was based on the information provided and in the interview given.
(16) The respondent/contemnor sought to be permitted, non-disclosure of his source of information, on the ground that without such protection, the said sources would be deterred in future in providing information to the press. Reliance was also placed on Section 15(2) of the Press Council Act, as an additional reason for not compelling a journalist to disclose his sources of information.
(17) On 3.1.1997, the issue of compelling disclosure of the source of information was taken up. Mr. Ravinder Sethi, Sr.Advocate, who had, in the meanwhile, been appointed as amices curiae to assist the court, cited several authorities to support directions by Court for disclosure of source, when warranted in interest of justice.
(18) At that stage, learned counsel for the respondents, in view of the legal position as also in view of what he described as "altered circumstances", submitted that the respondent/contemnor was now willing to disclose the source of information". Learned counsel also wanted to place before the court, the details of slay orders and court proceedings and other relevant details which according to respondent hampered the drive against unauthorized construction. Opportunity was given to lhe respondents to file additional affidavit giving the aforesaid details and to disclose the source of information.
(19) But, curiously and surprisingly, in a volte face on 13.1.1997, learned counsel for the respondents submitted that the statement made on 3.1.1997, - about the willingness to disclose lhe source of information, having regard to the legal position and the "altered circumstances", - was only the statement made by the counsel; but that he was now instructed to say that the respondents arc not willing to disclose their source of information. As regards furnishing relevant details of slay orders and court proceedings, which allegedly hampered the drive against unauthorized construction, the respondents staled that same would be placed before the Court since the same were still being gathered. The Editor of the newspaper was also directed to be personally present on the next dale and the case was listed for disposal.
(20) Mr. Arun Jaitley, Sr.Advocale, with Mr. Rajiv Nayyar, argued the matter for the respondent/contemnors on 22.1.1997 and 13.2.1997, while Mr. Ravinder Sethi, Sr.Advocate, assisted lhe court as amices curiae.
(21) The following points arise for consideration in this case:
(I)Whether the news report in question tends to undermine the public confidence in lhe judiciary and thereby interfere with the administration of justice?
(II)If yes, then whether lhe publication of the news report, which, per se, tends to lower the dignity of lhe Court and undermine public confidence in lhe judiciary can be justified on the ground that it is published bonafide, in good faith, on a mailer of public interest on the basis of an interview given by a senior government functionary?
(III)Whether the news paper editor can be directed in interest of justice to disclose the source of information, especially when the proceedings are for contempt?
(IV)Whether truth could be a defense in an action for contempt of court?
(V)Whether tendering of an unconditional apology should be accepted if the report has been published recklessly, without checking on the veracity of ils contents?
Point NOS. 1& 2:
(22) The very caption of the news report, viz. "Court hampering drive against constructiotion mafia" projects the courts as coming in way of action against the construction mafia. It then comments on the inability of the civic bodies to lake action against unauthorized construction due to the building mafia abusing the judicial system. It suggests that the action against the menace of unauthorized construction is not fructifying by the abuse of the judicial process by the building mafia. The second point which is projected is that stay and status quo orders are being given without justification and despite their being a Special Tribunal and Appellate Authority for such cases. Reference is thereafter made, as discussed earlier, to the case of "While House". An earlier order, allegedly granted by a Civil Court, directing the Sho to provide a water connection after cutting the road is mentioned. Reference is also made to rejection by Court of a plea to consolidate the different cases filed by the 24 tenants of "White House". These arc enumerated 'as factors coming in the way of drive against unauthorized constructions.
(23) We had questioned the learned counsel for the respondents to ascertain if there was any factual foundation or material for the news report. The respondents' stand, as noticed earlier, was that it was based on an interview of the senior government functionary, whose name they were initially unwilling to disclose, but in view of the legal position and "altered circumstances" they offered to disclose. The respondents then did a volte face and declined to disclose.
(24) The respondents and their counsel were asked whether they had carried out any study and collected information, which would enable them to reach the conclusion that the Courts were hampering the drive against construction mafia or that the building mafia was abusing the judicial system. It was even enquired whether any information or statistics had been collected with regard to the total number of unauthorized constructions for which notices had been given and the number and particulars of such cases, where demolition of unauthorized construction had been stayed by court orders. It was also put to the counsel as to which were the instances where status quo orders had been granted for the properties in Delhi by outstation courts, including Patna. Particulars were also sought with regard to the circumstances of the case, where the Sho was directed by a Civil Court to provide a water connection from the water mains after cutting the road. No such particulars or information or documents have been tendered. As noticed in paras 8 and 10 earlier, learned counsel for the respondents had submitted that the relevant details of stay orders and court proceedings, which hampered the drive against unauthorized construction, would be placed before the Court since the same were being gathered. No such particulars or documents have been placed before us. This apart, no evidence of any study or research prior to the publication of the report has been put before us. All that has been placed before us is an extract from the note pad of Mr. Rahul Pande, which is quite sketchy. It docs not mention cither the lime or the place of the interview or the name of the person interviewed. In these circumstances and especially considering that the respondents had earlier offered to disclose the name of the government functionary interviewed as well as source of other information but have subsequently done a volte face, coupled with the absence of any details or particulars of information gathered by them being furnished, we have no hesitation to conclude that this report has been written in a most reckless and irresponsible manner, without attempting to verify the basis of any of the serious aspersions that have been cast on the judiciary. The correspondent who had authored the report and the Editor of the newspaper, who has the statutory responsibility and even otherwise a duty stemming from his office, to ensure that the news report published is truthful, balanced and objective, have both singularly failed in their duties and gone about in the publishing of the news report, which tends to undermine public confidence in the administration of justice without any verification, research or analysis.
(25) We may observe that no particulars of any application said to have been filed by Ndmc for clubbing different cases of the tenants of the White House and its subsequent rejection by the High Court have been brought to our attention. Similarly, the incident referred to in the report of the alleged humiliation suffered by the Mcd officials, who had gone for the demolition of the building, being confronted with stay orders, is bereft of details. It also fails to recognize that the courts may in their discretion grant stay of demotition, where the procedure prescribed by law, such as requirement "to serve show cause notice, etc. has not been complied with or the demolition action is otherwise without jurisdiction. It would be pertinent to notice the submission of Mr. Ravinder Sethi, that the news report tends to project a biased picture, divorced from ground realities, inasmuch as it ignores the numerous instances, wherein either because of alleged negligence, inaction or collusion of the staff of the Civic Authorities, the unauthorized construction was permitted to come up and/or prior information of the proposed action for demolition is given, to frustrate the demolition action. This Bench, while dismissing writ petitions, challenging the demolition action for "White House" building, has ordered an enquiry to fix responsibility of the officials of the civil bodies in whose tenure four additional floors without sanction were allowed to be raised.
(26) We may also observe that the expression used, viz, "the facing of considerable aggression at the hands of the building mafia owing to the easily procurable slay orders from the judiciary", is per se contemptuous as it suggests that the stay orders are "easily procurable". In all fairness to the learned senior counsel for the respondents, Mr. Arun Jaitley, he did not even attempt to defend this reprehensible observation or to justify the same in any manner whatsoever.
(27) Learned counsel for the respondents submitted that the report had been authored in good faith and in public interest to focus attention to the menace of unauthorized construction. He made a fervent pica of there having been many instances in past wherein the judicial stay orders and intervention, did come in the way of demolition of unauthorized construction and the building mafia did lake advantage of the same. He very persuasively attempted to recall that it was only after few judgments of the Division Bench of this Court in Anil Khurana Vs. Mcd and Manju Bhatia Vs. N.D.M.C & others (1996 (IV) A.D. 141)lhal the activities of the building mafia received a set back and public awareness of unauthorized constructions not being tolerated or regularized was created. He submitted that we should consider the news report as an attempt in that direction to focus attention of the public to the menace of unauthorized constructions with an over various correspondent, over stepping and transgressing the limits of legitimate criticism.
(28) We may observe that we are conscious of the fact that Courts arc not to be over sensitive to their criticism and we are reminded of the observations of Lord Alkin in Andre Paul Terence Ambard Vs. The Attorney General of Trinidad and Tobago (1936) 1 All Er 704." "NO wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the scat of justice. The path of criticism is a public way: the wrong- headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and arc genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."
(29) In fact, in the in slant case, when we sought from the respondents the details of the legal proceedings, slay orders and cases, based on which the statements in lhe report were made, it was with lhe objective to ascertain the same and lake remedial measures, if necessary. Any legitimate criticism, based on factual foundation and available material would even enable or facilitate taking of remedial or corrective measures. However, the irresponsible and reckless publication, without any available material or factual foundation, would only have the effect of undermining public confidence in the judiciary and, thereby, interfere in the administration of justice. Besides the imputation of "easily procurable stay orders" in lhe context used conveys and attribute ulterior motives and considerations in passing of orders. Reference may be usefully invited to lhe decision of lhe Apex Court in Hari Jai Singh & AM. Vs. Vijay Kumar . In this case the Apex Court, while dealing with the publication of a false report in lhe newspapers, of favors in allotment of pumps to sons of senior judges of lhe Apex Court, held the editor and the correspondent guilty of contempt, observing as under: "SUCH an irresponsible conduct and altitude on lhe part of the editor, publisher and the reporter cannot be said to be done in good faith but distinctly opposed to lhe high professional standards as even a slightest enquiry or a simple verification of the alleged statement about the grant of petrol pumps to two sons of the judges of the Supreme Court from the discretionary quota which is found to be patently false would have revealed lhe truth. But it appears that even ordinary care was not resorted to by the contemnors in publishing such a false news. This cannot be regarded as a public service but a dis-service to the public by misguiding them with false news. Obviously, this cannot be regarded as something done in good faith. This court has always entered fair criticism of the judgments and orders or about the presence of a judge. Fair criticism within the parameters of law is always welcome but the news items with which we are concerned can neither be said to be fair or made in good faith but wholly false and the explanation is far from satisfactory."
(30) We find the present case to be one where the ratio of the above judgment of the Apex Court would apply. The report had been authored and published without any research, analysis or verification of the imputations made therein, thereby dispelling the claim of publication in good faith.
(31) We, therefore, hold that merely because the subject matter is one of public interest and the contemnors claim to have written it bonafide, the same cannot be accepted as an explanation inasmuch as there is no good faith in the absence of requisite material, or an attempt at verification of imputations made and of any research and analysis, prior to publication. Point No. 3:
(32) Learned counsel for the respondents/ contemnors submitted that the respondents should not be compelled to disclose the name of the Government functionary interviewed by the correspondent. This he submitted was essential to protect and preserve the sources of information and for effectually exercising the freedom of the press. Learned counsel submitted that if the source of information was not protected, the same would dry up and gathering of news would become impossible and the freedom of Press would become an empty shell. Reliance was placed by the learned counsel on the 93rd Report of Law Commission, which recommended addition of Section 132A of the Indian Evidence Act, to protect the source of information, if information had been provided on the agreement or understanding that it would be kept confidential. Learned counsel also relied on Section 15(2) of the Press Council Act. Reference was also made to the decision of Lord Denning in Granada T.V. (1981(1) All England Reporter 417. "IT was held that the newspaper should not be in general compelled lo disclose the sources of information. Neither by means of discovery before trial. Nor by questions or cross examination at the trial. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their source would dry up. Wrong doing would not be disclosed. Charlatans would not be exposed, unforeseen would go un remedied, Misdeeds in the corridors of power, in companies or in Government departments would never be known. Investigative Journalism has proved itself as a valuable adjunct to the freedom of Press......"
(33) It is significant that while making the observations Lord Denning observed nevertheless this principle is not absolute and the journalist has no privilege by which he can claim as if right to refuse to disclose. There may be exceptional cases in which on balancing the various interest, the Court decides that the source should be disclosed. Lord Denning observed, "the rule by which a newspaper should not be. com- polled to disclose the source of information" is granted to a newspaper on condition that it acts with a due sense of responsibility. In order to be deserving of freedom, the Press must show itself worthwhile of it. A free Press must be a responsible Press. As the power of press is great it must not abuse its power. If a newspaper should act irresponsibly then it forfeits its claim to protect its source of information." The House of Lords in Granada T.V. case on facts held that they were bound to disclose the name of informers though such names need not be disclosed in all cases.
(34) The principle that emerges is that the Courts ought not to compel confidences bonafide given to be breached unless necessary in the interest of justice. Learned counsel for the respondents/contemnors also referred to certain American decisions. Reference to Section 10 of the amended Contempt of Courts Act in England was made which provided that no Court would require a person to disclose or hold a person guilty of contempt for not disclosing the source of information unless it is established to the satisfaction of the Court that the disclosure is necessary and in the interest of national security or for the prevention of disorder of crime. We, therefore, hold that the court has the power to direct disclosure of the source of information, when considered necessary in the interest of justice.
(35) In the instant case, it is not necessary to direct disclosure of source as we have concluded that the news report was written without requisite material or factual foundation. There was no verification of facts or research and analysis. It is a case of the author acting irresponsibly and accepting whatever is told to him in an alleged interview. Besides, the respondents as noticed earlier initially were not willing to disclose the source or the name of person interviewed. However, soon thereafter in view of the legal position and the "altered circumstances" the counsel indicated their willingness to disclose the name of person interviewed. Later on, at the third stage, the respondents/ contemnor did a voile face and declined to disclose the person interviewed or the source of information, on the ground that it would adversely affect their information gathering capacity in future. In these circumstances, we have justifiably and legitimately drawn an adverse inference that there is no factual foundation or requisite material available with the rcspondcnls/contemnor, for publication of News port. No useful purpose would be served by insisting on the disclosure of the person interviewed or the source of information. Point No.4:
(36) As regard truth being a defense against action for contempt, learned counsel submitted that he was not pleading justification or truth of the allegations in the in slant case but made submissions treating it purely as an academic legal question. He placed reliance on certain observations made in the decision of the Apex Court in Ramakrishna Reddy Vs. Stale of Maharashtra ( 1952 S.C.R. 425 Page 434). The observations were made in the context of an article questioning the integrity and honesty of a judicial officer. Specific instances had been given where the official is alleged to have taken bribes or behaved with impropriety to the litigant, who did not satisfy his dishonest demands. It was in this context that lhe Apex Court had observed that "if the allegations were true obviously it would be to the benefit of the public to bring these matters into light. But if they were false they cannot but undermine the confidence of public in the administration of justice and bring judiciary into disrepute. Reliance was also placed on M.R. Prashar Vs. Rarooq Abdillah (1984 S.C. 516), wherein it was observed that "freedom of speech could not be confused as a licence to make unfounded allegations against the judiciary. Emphasis was made on the word "unfounded" so as to suggest that the dictum would not apply to well founded allegations.
(37) Learned counsel submitted that publication of imputations which arc true would strengthen the institution of judiciary rather than undermine the confidence of the public. In the same, truth should, therefore, be accepted as a defense even an action for contempt, (38) As against this, learned counsel, amices curiac, submitted that truth or justification could not be pleaded as defense in a contempt action. An attempt to justify would itself constitute a fresh contempt. Learned counsel relied on Registrar of Bombay High Court Vs. S.K. Rani , wherein it was held, "the truth of the allegations is no defense in the proceedings for contempt. Nobody is allowed to scandalize a court and make allegations against it even if they arc true. Every attempt to justify must constitute a new offence of contempt committed in the very face of the Court. Further assertion of truth of allegations would itself amount to a fresh contempt." The Apex Court in M. V. Shareff Vs. Hon'ble Judge of Nagpur High Court (1966 S.C. 19) held, "there cannot be both justification and apology. The two things arc incompatible. Reference may also be usefully made to the decision of Bench of three judges of the Apex Court in Perspective Publication Pvt. Ltd. & Another Vs. State of Maharashtra (1969 S.C.R.(2) 779, wherein it was held, "it may be that the truthfulness or factual correctness is a good defense in an action for libel, but in the law of contempt there are hardly any English or Indian cases in which such defense has been recognised." The Bombay High Court in V.M. Kanade Vs. Madhav Gadkari & Others (1990 Crl.L.J. 190 had the occasion to review the law while rejecting the plea of truth as a defense in contempt action observed, "may be it is better to suffer a judge against whom prima face true allegations of lack of integrity arc made than exposed the entire Judiciary to a public trial which must necessarily result if in contempt proceedings the true allegations is allowed to be examined. This is probably the price which we called upon to pay for the proper and effective functioning, though not wholly satisfactory functioning of an institution such as judiciary."
(39) The preponderance of judicial pronouncements is that truth is not to be accepted as defense in contempt. However, as noticed earlier, it is not finally necessary lo decide this question in the facts of this case as the respondents have not set up truth as defense and on the other hand have tendered unconditional apology. Point No.5 (40) Learned counsel submitted that the correspondent as well as the Editor have tendered their unconditional apology. The apology has been tendered at the earliest opportunity. The correspondent and the Editor have both assured the Court that they would exercise utmost precaution and care in future while authoring or publishing the news reports.
(41) Learned counsel argued that the news report has been published with the bonafide intention of bringing out the difficulties being encountered by the enforcement agencies in their drive against the menace of unauthorized construction. The respondents/ contemnors are not seeking to justify the article or the aspersions contained therein.
(42) Considering that the subject was one of wide public interest, and the attendant circumstances as set out and discussed in points I and 2, the Court should accept the apology and give a quietus to the matter. Learned counsel submitted that the pleas urged by him with regard to non- disclosure of the source of information and truth being accepted as a defense in contempt action were purely for academic and legal interest. In so far as the present case was concerned they were neither pleading justification nor truth was setup as a defense and had left themselves at the mercy of the Court. Reliance was also placed on the order dated 26-4-1996 in Madhav GAdkari & Others Vs. Sh. V.M. Kanade & Others, where the Apex Court accepted the apology and dropped the contempt proceedings in far more serious and aggravated circumstances. Learned counsel also relied on Proviso to Section 12 of the Contempt of Courts Act as well as Section 13 of the Contempt of Courts Act to submit that the respondents/ contemnors should be discharged. The provisions of the Contempt of Courts Act regarding nun-rejection of an apology on the ground that it was a conditional one as well as the provision for no punishment unless the contempt was grave and substantial, would at best be of persuasive value and cannot control or govern the discretion of the Court under Article 215 of the Constitution of India. We have already held and found that the news report in question was contcmptous. It scandalized the Court and tended to undermine the confidence of public in the administration of Justice. The report had been published irresponsibly, recklessly without verification or analysis or research. However, on a consideration of the entire matter, respondents/contemnors appear to be genuinely repentant and have tendered their unconditional apology for having published the news report in question. We accept the apology and discharge the notice subject to the condition that the respondents/ contemnor shall prominently publish on the front page of their newspaper an unconditional apology, the draft of which would be approved from the Court within a week.