Lokanath Mishra, Nationalist Lawyers ... vs State Of Orissa And Ors. on 10 August, 1999

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Orissa High Court

Lokanath Mishra, Nationalist Lawyers ... vs State Of Orissa And Ors. on 10 August, 1999

Equivalent citations: 1999CRILJ4719, 1999(II)OLR241

1. These four petitions have been filed alleging contempt on the part of opposite parties Nos. 2 to 11 in Original Criminal Misc. Case No. 273 of 1995 and 278 of 1995, 1 to 13 in Original Criminal Misc. Case No. 279 of 1995 and 4, 5 and 6 in Original Criminal Misc. Case No. 285 of 1995 in maliciously criticising an Honourable Judge of this Court in respect of a judicial order passed. As the controversy involved in these applications is similar, this judgment shall govern each one of them.

2. In Original Criminal Misc. Case No. 273 of 1995 petitioner is an Advocate and has alleged that the contemnors - opposite party Nos. 2, 3, 4, 5, 6 and 7 have committed contempt in the manner described hereinafter. According to petitioners the said opposite parties are members/ office bearers of certain organisations who held a Press Conference at Cuttack and made contemptuous statements against the Hon'ble Judge. The said statements were published in the Oriya daily 'The Samaj' in its first edition on 7.7.1995. Opposite party Nos. 10 and 11 were the Editor and the Publisher of the said news-paper, who have since left this world and in any event before their death they expressed unconditional apology. Opposite party Nos. 8 and 9 had not participated in the deliberations made in the Press Conference and therefore, no notice was issued to them.

Original Criminal Misc. Case No. 278 of 1995 has been filed by a registered association of advocates, who are members of theOrissa High Court Bar Association and are the petitioners. They have made similar allegations in respect of opposite party Nos. 2 to 7 and 10 and 1 !. Original Criminal Misc. Case No. 279 of 1995 has been filed by an Advocate of the Orissa High Court Bar. Opposite party Nos. 10 and 11 in other applications arc opposite party Nos. 1 and 2 in this application. Opposite party Nos. 5 to 10 in this application are opposite party Nos. 2 to 7 in the aforementioned two applications. Additionally opp. party No. 13 has been impleaded lor allegedly making certain contemptuous statements. But no steps for getting notice served on her has been taken by petitioner. Opposite party Nos. 3 and 4 are Editor and Publisher of Oriya Daily 'The Sambad' for allegedly having published some statements which per se affected the dignity and honour of the Court. Petitioner in Original Criminal Misc. Case Nos. 278 of 1995 also filed Original Crl. Misc. Case No. 285 of 1995 wherein the Editor and the Publisher of the Oriya Daily 'The Sambad' and author of allegedly offending article have been impleaded as opposite party Nos. 4. 5 and 6.

3. Allegations in all these applications are that the contemnors have attempted to abuse and undermine dignity of a judicial order of this Court. It is highlighted that the statements/publication show an Honourable Judge and this Court in a poor light. Allegations of corruption and succumbing to pressure have been made which per se amounts to contempt. According to them, show cause replies filed by the concerned contemnors'try to justify their action. The persons who organised the Press Conference have been taken the plea of reacting to an improper grant of bail. According to them, bail should not have been granted to the in-laws of the alleged dowry tortured victim. They have raised question of dignity and honour of women. The Editor, the Publisher and the Author of the article published in the "Sambad' have more or less tried to justify their action giving the colour of social requirement and freedom of Press. Though they have tendered some sort of apology that has been done after justifying the publication and authorship. The matter was heard on several dates and on 6.1.1 999 there was no appearance on behalf of the contemnors. When the matter was listed under the heading 'To be mentioned'. Mr. Ashok Mohanty, learned counsel appearing for the persons who organised the Press Conference reiterated the stand taken in the show-cause reply There was no appearance on the aforesaid dates by the Editor, the Publisher or the Author of the article as published in the Sambad. In the reply filed to the show-cause earlier, it is stated that what was stated was the reaction of the Press to the grant of bail, by a learned Judge of this Court. The English translation of the news published in the daily 'Samaj" dated 07.07.1995 reads as follows :
"The grant of bail to mother-in-law and husband for torturing bride Lushna by the High Court on last 15th instant at mid-night has created suspicion on the impartiality and integrity before the general public as alleged by different women organisations. It is stated on behalf of the organisation that from the incident it is clearly evident that High Court is also not excepted from power, influence, nepotism and hankering after money...."

(Underlined for emphasis)

4. 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 Law of Contempt in 1990 (2) Q.B. 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."

The above proposition has been approved and followed by Lord Aikin in Andrew Paul v. Attorney General : AIR 1936 PC 141. Lord Justice Donovan in Attorney General v. Buttcrworth : 1963 (1) Q.B. 696 after making reference to Reg. v. Odham's Press Ltd. exparte A.G.: 1957 (1) Q.B. 73 said; "Whether or not there was an intention to interfere with the administration of Justice is relevant to penalty, not to quit." This makes it clear that an intention to interfere with the proper administration of Justice is an essential ingredient of the offence of contempt of Court and it is enough if the action complained of is inherently likely so to interfere. In Morris v. Crown Office : 1970 (1) All E.R. 1079 Page 10HI, Lord Denning M.R. said :
"The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society."

In the same case, Lord Justice Solmon spoke :
"The sole purpose of proceedings for contempt is to give our Courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented."

Frank Further, J. in Offutt v. U.S. : 1954 (348) US 11 expressed his view as follows :
"It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage."

In Jennison v. Baker : 1972 (1) All ER 997 at page 1006, it is stated :
"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."

Chinappa Reddy, J. speaking for the Bench in Advocate General, Bihar v. M.P. Khair Industries : 1980 (3) SCC 3111 citing those two decisions in cases of Offutt and Jennison {supra) stated thus :
".....It may be necessary to punish as a contempt a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of public in the administration of justice. The public have an interest, an abiding and a real interest, and vital stake in the effective and orderly administration of justice, because unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and so it is Contempt of Court not in order to protect the dignity of the Court against 'Contempt of Court' may seem to suggest, but to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with."

Krishna Iyer; J. in his separate judgment in re S. Mulgaokar : I97_8_(3)SCC3J9, while giving the 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."

In the case of Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh : AIR 1954 SC 10, the apex Court after referring to various decisions of the foreign countries as well as of the Privy Council stated thus :
"It 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 it it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmative that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely or tends in any way to interfere with the proper administration of law."

A bare reading of the statement makes it clear that the statement made amounts to a scurnlous attack on the integrity, honesty and judicial impartiality of a learned Judge of this Court. The contemnors by their conduct as well as by making such scandalising statements and invective remarks have interfered and seriously disturbed the system of administration of justice by bringing it down to disrespect and disrepute.

5. Role of the Press in publishing contemptuous statements made and making observations on the conduct of the Court has been highlighted by this Court in Srinivas Mohanty etc. etc. v. Dr. Radhanath Rath, Editor, Samaj and three others : 1997 (II) OLR 383.

"The Press plays vital role in the administration of justice. It is the watchdog to see that every trial is conducted fairly, openly and above board. But the watchdog may sometimes break loose and have to be punished for misbehaviour." These words in the Learned Judge Lord Denning M.R.'s book Road to Justice : (1955) page 78 have become locus classicus. Press occupies a vital place in the modern society. Press in this country has risen to great heights in the past. In the past when we were under foreign domination, press on the one hand wakened human consciousness towards their rights to freedom and liberty, and on the other hand, posed to threat to the foreign rulers of being exposed wherever they did any act of highhandedness. Yet, any institution when misused is bound to do more harm than good. Press too in the zeal of either helping the victim of oppression, or in exposing the oppressor entered into the field of investigations or trial of a pending case. It was here that the conflict with the judiciary came and cases for contempt of Court were started. In 1954, a Press Commission was appointed, which enquired into all matters connected with the working of Press and all aspects of Journalism. One of the matters considered was contempt of Court, and contempt of Legislature.

6. The freedom of the Press is basically the freedom of the individuals to express themselves through the medium of Press. This implies that the freedom of Press is not superior to that of an individual. In fact this freedom is fundamental to the life of an individual. In the words of William Blackstone, "The liberty of the Press is indeed essential to the nature of the free State; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiment he pleaded before the public, to forbid this, is to destroy the freedom of the press; but if publishes what is improper, mischievous, or illegal he must take the consequences of his own temerity." (See Blackstone's. Commentaries Vol. IV at pages 151, 152). In early nineteen century Lord Ellenborough observed in Max v. Cobbet : (1804) 20 How. St. Trl. 1):
"The law of England is the law of liberty, and consistently with this liberty we has not what is called an imprimatur; there is no such preliminary licence necessary, but if a man publishes a paper he is exposed to the penal consequence as he is in every other act if it be illegal."

7. There is guarantee of the Constitution of India 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 American phraseology 'inherent tendency or reasonable tendency'. The apex Court of America in Bridges v. Calfornia : (1911) 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 ol all concerned.

8. The Press does not have the right, which is its professional function to criticise and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not least the administration of justice. But the public function which belongs to the press makes ii an obligation of honour to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a powerful instrument of injustice. It should not and may not attempt to influence Judges before they have made up their minds on pending controversies. Such restriction, which merely bars the operation of extraneous influence specifically directed to a concrete case, in no way curtails the fullest discussion of public issues generally. It is not suggested that generalised discussion of a particular topic should be forbidden, or. run the hazard of contempt proceedings, merely because some phrases of such a general topic may be involved in a pending litigation. It is the focussed attempt !o influence a particular decision that may have a corroding effect on the process of justice, and it is such common that justifies the corrective process. To similar effect was the observation of Frankfurt her, J. in Pannekamo v. Florida : (1946) 90 Law Ed. 1295.

9. 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 judgments of the Judges. They do not think themselves to be in possession of all truth or hold that whoever 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, attributing improper motives, qr 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 aiso 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. To similar effect were the observations of Hidavatitllah, C.J., as the learned Judge was then in R.C.Cooper v. Union of India : AIR 1970 SC 1318.

10. The freedom of press under our Constitution is not higher than that of citizen, and that there is no privilege attaching to the profession of the press and distinguished from the members of the public. To whatever height the subject in general may go, so also may the journalist, and if an ordinary citizen may not transgress the law, so must not the Press. That the exercise of expression is subject to the reasonable restriction of the law of contempt is borne out by Clause (2) of Article 19 of the Constitution. It should be well to remember that the Judges by reason of their office are precluded from entering into any controversy in the columns of the public press, nor can enterthat arena and do battle upon equal terms in newspapers, as can be done by ordinary citizens.

11. It may be noted here that in the illustrated case Re : S. Mulgaokar reported in AIR 1978 SC 727 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 made in a manner which seems designed to lower respect of the judiciary and destroy public confidence in it, it cannot be ignored.

Though certain imputations against a judge may be only libellous against that particular individual, it may at times amount to contempt also depending upon the gravity of the allegations. In the decision in the case of Brahma Prakash Sharma {supra), the apex Court held that a defamatory attack on a Judge may be libel so far as the Judge is concerned and it would be open to him to proceed against the libellor in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such Court, it can be punished summarily as contempt. The same view has been taken in the decisions in Perspective Publications (P) Ltd. v. The State of Maharashtra reported in AIR 1971 SC 221: and C.K.Dapthary and Ors. v. O.P.Gupta and Ors. reported in AIR 1971 SC 1132. Therefore, apart from the fact that a particular statement is libellous, it can constitute criminal contempt if the imputations is such that the same is capable of lowering the authority of the Court. The gravity of the aforesaid statements is that the same would scandalise the Court.

12. There can be no doubt that Press is a necessary instrumentality for strengthening the forces of democracy. But every freedom is subject to reasonable restriction. As we have already pointed out, it is in the public interest to see that allegations or criticism which would scandalise or tend to scandalise or tend to lower authority of the Courts is not permitted because in the functioning of democracy an independent judiciary to dispense justice without fear or favour is necessary and its strength is the faith of the public in general in that institution. That cannot be permitted to be undermined because that will be against public interest. Therefore, the news item has to be examined and scrutinised in the backdrop of the aforesaid position of law.

13. As observed by the apex Court in Sewak Ram Sobhani v. R.K.Karanjia and Ors. : AIR 1981 SC 1514, the freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist but. apart from statute law, his privilege is no other and no higher. In T. Deen Dayal v. The High Court of Andhra Pradesh : 1997 (6) SCALE 30, the apex Court observed as follows :
"We have extracted the allegations constituting the contempt in the beginning of this Order, We are satisfied they are ex facie contumacious and the scurrilous attack was intended to scandalise the Court within the meaning of criminal contempt under Section 2(c) of the Act. Such attack as seen above, is punishable as contempt for the reason that it tends to create distrust in the popular mind and impairs confidence of the people in Courts which are prime importance to the litigants in the protection of their rights and liberties. This Court in RE S. Mulgaokar [1978 (3) SCC 339] observed as follows :
'The sixth consideration is that, after evaluating the totality of factors, 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." ;

14. The factual position analysed in the background of statements and/or news items and/or articles published leave no manner of doubt that the contemnors were guilty of contempt of this Court. We find that the Editor and the Publisher of the Sainaj are not alive. They had tendered unconditional and unqualified apologies earlier. There is not even a remote or genuine apology for the statement/publications made by the others. After we had concluded the hearing, we had posted the matter for the purpose of further hearing under the heading 'To be mentioned'. We were hopeful that some genuine remorse will be shown, and the contemnors will definitely feel guilty and purge the contempt. But the obstinacy has continued, and in some cases there was not even appearance when the matter was taken up for hearing. Considering the aforesaid, we hold the contemnors guilty and direct them to undergo simple imprisonment for one month and to pay a fine of Rs. 5,000/- (five thousand) each. We. Koweve'frarFfncl'ined"to"grant an opportunity to the contemnors to purge the contempt. It should not be misconstrued as if we have shown any liberal attitude towards them. It is often said that to forgive is noble and to forget is divine. Majesty of Law continues to hold its head high notwithstanding such scurrilous attack made by persons who feel the law Courts will absorb anything and everything, including attacks on their honesty, integrity and impartiality. While therefore sentencing the contemnors as indicated above, opportunity is granted to them to offer their genuine apologies, and show actual repentance for their conduct. For this purpose, they shall publish an unconditional apology in the concerned news-papers within one month from today clearly indicating there that they offer their unqualified apology and show repentance for their abnoxious conduct in making remarks, statements and publications touching impartiality and integrity of a learned Judge of this Court. Since the Editor and the Publisher of the Samaj tendered their unqualified apologies earlier, the present Editor in the absence of those two persons shall publish apology to that effect. The publication shall be made in bold letters on the front page of the concerned news-paper. If no apology is tendered, the sentence will stand.

The applications are accordingly disposed of.

P.C. Naik, J.

1. Learned brother Pasayat, A.CJ. has already made a reference to the facts and also quoted the statement made and later published, I, therefore, need not repeat them.

2. That there has been a statement and its publication, is not disputed. What, therefore, is to be seen is whether making of the statement and publication thereof in newspaper amounts to an act done which is calculated to bring a Court or a Judge into contempt by lowering its/his authority.

3. It cannot be denied that judgments are open to criticisms and in the words of Lord Mussel, C.J. in Reg. v. Gray, i960 (2) QB 36, "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 Contempt of Courts 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 27 at page 21 of Volume 9 of 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. "Thus, before coming to a 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 or the other, will determine whether or not the act complained of amounted to contempt.

4. A mere perusal of the statement in question bears no manner of doubt that what was stated and later published can, under no stretch of imagination, be said to be a fair and bonafide criticism. On the contrary, it attributes improper motives to a Judge of this Court in the conduct of judicial work and not only transgresses the limit of fair and bonafide criticism but also has a tendency to affect the dignity and prestige of the Court. Obviously, it imputes improper motive and thus amounts to scandalising the Court itself which is likely to create distrust amongst the common masses and the confidence of the public at large in the fair and impartial administration of justice will be shaken. Therefore, the statement in question, publication whereof was made in newspaper, is bound to lower the dignity of the Judges and Court and also shakes the confidence of the public at large in the impartial dispensation of justice.

5. We are conscious that action for contempt is to be used sparingly and always with reference to administration of justice, for as observed by Lord Russel, C.J. in Reg. v. Gray {supra), it is a jurisdiction, however, to be exercised only when the case is clear and beyond reasonable doubt. Reference may also be made to the observation oi: Lord Atkin in Andre PaulTerence Ambard v. The Attorney-General of Trinidad and Tobago, AIR 1936 PC 141, that justice is not cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man.

But, it should not be forgotten, as observed by Lord Williams, J. in the matter of Tushar Kanti Ghosh, Editor, Amrit Bazar Patrika, and Anr., AIR 1935 Calcutta 419, that nothing can be more serious than publish statements calculated to diminish or destroy public confidence in Courts of justice and no offence calls for or deserves more swift or more summary punishment.

These limitations have been kept in mind and ¦after a careful analysis of all the materials on record, I have no hesitation in coming to the conclusion that the statement made by the concerned O.P. and later published in newspaper not only has a tendency to affect the dignity and prestige of the High Court but is also likely to shake the confidence of the public in the High Court and resultantly impair the administration of justice.

6. Before concluding, a reference may be made to the view expressed by Mahajan, J. in Aswini Kumar Ghose and Anr. v. Arabinda Bose and Anr., AIR 1953 SC 75 :

" No objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the Judges, it not only transgressed the limits of fair and 'bona fide' criticism but had a clear tendency to affect the dignity and prestige of this Court......It is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence'of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.... We would like to observe that it is not the practice of this Court to issue such rules except in very grave and serious cases and it is never over-sensitive to public criticism; but when there is danger of grave mischief being done in the matter of administration of justice, the animadersion cannot be ignored and viewed with placid equanimity..........."

7. Since the statement made and later published in the newspaper clearly alleges that justice is sold and it imputes improper motives to the Judges and the Court and also calls in question the impartiality and integrity of the Court, it is clear case of contempt and is punishable as such. Accordingly, I concur in the punishment imposed.

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