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PETITIONER:

BRAHMA PRAKASH SHARMA AND OTHERS

Vs.

RESPONDENT:

THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT:

08/05/1953

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

BHAGWATI, NATWARLAL H.

SASTRI, M. PATANJALI (CJ)

DAS, SUDHI RANJAN

HASAN, GHULAM

CITATION:

1954 AIR 10 1954 SCR 1169

CITATOR INFO :

C 1954 SC 743 (4)

E&F 1959 SC 102 (3)

R 1962 SC1172 (29)

R 1971 SC 221 (17)

RF 1971 SC1132 (53,58)

R 1972 SC 989 (8)

D 1974 SC 710 (51)

R 1978 SC 727 (42,44)

F 1978 SC 921 (12,16)

R 1992 SC 904 (23,54)

ACT:

Contempt of Courts Act, 1926, s. 3 Reflection on condition

character of Judicial Officers When amounts to contempt of

court Contempt proceedings--Guiding principles Matters to be

considered-Relevancy of surronuding circumstances-

Jurisdiction to be sparing exeercised.

HEADNOTE:

(1) Vide Vaghoji v. Camaji, I.I..R. 29 Bom. 249.

117O

The object of contempt proceedings is not to afford

protection to judges personally from imputations to which

they maybe exposed as individuals, but is intended to be a

protection to the public whose interest would be very much

affected if, by the act or conduct of any party, the

authority of the court is lowered and the sense of

confidence which the people have in the administration of

justice by it is weakened.

When the court itself is attacked, the summary

jurisdiction by way of contempt 'proceedings must be

exercised with scrupulous care and only when the case is

clear and beyond reasonable doubt.

There are two primary considerations which should weigh

with the court in such cases, viz., first whether the

reflection on the conduct or character of the judge is

within the limits of fair and reasonable criticism, and

secondly, whether it is a mere libel or defamation of the

judge or amounts to a contempt of the court. If it is a

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mere defamatory attack on the judge and is not calculated to

interfere with the due course of justice or the proper

administration of the law by such court, it is not proper to

proceed by way of contempt.

Where the question arises whether a defamatory statement

directed against a judge is calculated to undermine the

confidence of the public in the competency or integrity of

the judge or is likely to deflect the court itself from a

strict and unhesitant performance of its duties, all the

surrounding facts and circumstances under which the

statement was made and the degree of publicity that was

given to it would be relevant circumstances. The question

is not to be determined solely with reference to the

language or contents of the statement made.

The Executive Committee of a District Bar Association

received several complaints against the way in which the

Judicial Magistrate and the Revenue Officer of the District

disposed of cases and behaved towards litigants and lawyers,

and passed a resolution which stated that " it was their

considered opinion that the two officers are thoroughly

incompetent in law, do not inspire confidence in their

judicial work, are given to stating wrong facts when passing

orders and are overbearing and discourteous to the litigant

public and lawyers alike " and gave a list of various

complaints against the officers. This resolution was passed

in camera, typed out by the President himself and forwarded

confidentially to the District Magistrate, Commissioner of

the Division, and the Chief Secretary and Premier of the

State. The District Magistrate moved the High Court of

Allahabad to take action against the appellants, who had

passed the resolution, for contempt of court. The High

Court held that the appellants were guilty of contempt but

accepted their apology. On appeal:

Held, that in the light of all the circumstances of the

case, the contempt, if any, was only of a technical

character and that after the affidavits bad been filed on

behalf of the appellants before the High Court, the

proceedings against them should have been dropped.

1171

JUDGMENT:

CRMINAL APPELLATE JURISDICTION: Criminal Appeal No. 24 of

1951.

Appeal by special leave granted by the Supreme Court on the

2nd April, 1951, from the Judgment and Order dated the 5th

May, 1950, of the High Court of Judicature at Allahabad in

Criminal Miscellaneous Case No. 34 of 1949.

M. C. Setalvad, Attorney-General for India, K. S.

Krishnaswamy Aiyangar and S. P.Sinha (V. N. Sethi, K. B.

Asthana, N. C. Sen, K. N. Aggarwala, Shaukat Hussain, K. P.

Gupta, M. D. Upadhyaya and G. C. Mathur, with them) for the

appellants.

Gopalji Mehrotra and Jagdish Chandra for the respondent.

1953. May 8. The Judgment of the Court was delivered by

MUKHERJEA, J.This appeal which has come before us, on

special leave, is directed against a judgment of a Full

Bench of the Allahabad High Court, dated 5th May, 1950, by

which the learned judges held the appellants guilty of

contempt of court; and although the apology tendered by the

appellants was accepted, they were directed to pay the costs

of the respondent State.

The appellants, six in number, are members of the Executive

Committee of the District Bar Association at Muzaffarnagar

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within the State of Uttar Pradesh, and the contempt

proceedings were started against them, because of certain

resolutions passed by the Committee on 20th April, 1949,

copies of which were forwarded to the District Magistrate

and other officers by a covering letter signed by appellant

No.1 as President of the Bar Association.

To appreciate the contentions that have been raised in this

appeal, it would be necessary to state a few relevant facts.

The resolutions which form the basis of the contempt

proceedings relate to the conduct of two judicial officers,

both of whom functioned At

1172

Muzafarnagarn at the relevant time. One of them named

Kanhaya Lal Mehra was a Judicial Magistrate while the other

named Lalta Prasad was a Revenue Officer. It is said that

the first appellant as President of the Bar Association

received numerous complaints regarding the way in which

these officers diposed of cases in their courts and behaved

towards the lawyers and the litigant public. The Executive

Committee of the Association took the matter in hand and,

after satisfying themselves that the complaints were legiti-

mate and well-founded, they held a meeting on 20th April,

1949, in which the following resolutions were passed:-

Rsolved that ----

"Whereas the members of the Association have had ample

opportunity of forming an opinion of the judicial work of

Sri Kanhaya Lal, Judicial Magistrate, and Shri Lalta Prasad,

Revenue Officer,

It is now their considered opinion that the two officers

are thoroughly incompetent in law, do not inspire confidence

in their judicial work, are given to stating wrong facts

when passing orders and are overbearing and discourteous to

the litigant public and the lawyers alike. Besides the

above-mentioned defects common to both of them, other

defects are separately catalogued as hereunder:-

* * * *

(The complaints against each of the officers separately

were then set out under specific heads).

Resolved further that copies of the resolution be sent to

the Honourable Premier, the Chief Secretary of the Uttar

Pradesh Government, the Commissioner and the District

Magistrate for suitable action;

Resolved that the District Magistrate and Collector be

requested to meet a deputation of the following in this

connection at an early date;"

(The names of 5 members who were to form the deputation

were then mentioned.)

1173

It is not disputed that this meeting of the Executive

Committee of the Bar Association was held in camera and no

non-member was allowed to be present' at it. The

resolutions were typed out by the President himself and the

proceedings were not recorded in the Minute Book of the

Association at all. On the following day, that is, on 21st

April, 1949, the President sent a copy of the resolutions

with a covering letter marked " confidential" to the

District Magistrate, Muzaffarnagar. Copies of the

resolutions were similarly despatched to the Commissioner of

the Division, the Chief Secretary and the Premier of Uttar

Pradesh. It is not disputed that the District Magistrate

was the immediate superior of the officers concerned, and

the other three were the higher executive authorities in the

official hierarchy. One paragraph of this covering letter

contained the following statement:-

"Complaints against these officers had been mounting and a

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stage was reached when the matter had to be taken up

formally. The resolution is not only well-considered and

unanimous but represents a consensus of opinion of all

practitioners in the Criminal and Revenue side."

The post-script of the letter addressed to the District

Magistrate contained a prayer that he might find it

convenient to fix an early date to meet the deputation of 5

members as indicated in the third resolution.

The Divisional Commissioner, by his letter dated 27th

April, 1949, addressed to appellant No. 1, acknowledged

receipt of the copy of the resolutions and requested the

addressee to supply specific details of cases tried by these

officers in support of the allegations contained in the

resolution. Without waiting for this information, however,

the Commissioner on the day following wrote a letter to the

Chief Secretary of the U.P. Government suggesting that the

matter should be brought to the notice of the High Court

inasmuch as instances were not rare where influential

members of the Bar got resolutions like these passed by

their associations with a view to put

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1174

extra-judicial pressure upon the judicial officers so ,as to

make them amenable to their wishes which often were

questionable. On 10th May, 1949, a deputation of 5 members

waited upon the District Magistrate and discussed with the

latter the entire situation. The Magistrate also told the

deputation that the details of complaints as required by the

Commissioner should be furnished at an early date. These

details were sent to the District Magistrate by the

appellant No. I on 20th June, 1949, and specific instances

were cited, the accuracy of which was vouched by a number of

senior lawyers who actually conducted those cases. On 20th

July, 1949, the District Magistrate through the Divisional

Commissioner wrote a letter to the Registrar of the High

Court of Allahabad requesting the latter to draw the

attention of the High Court to the resolutions passed on

20th April, 1949, and other remarks made by the members of

the Committee and suggesting that suitable action might be

taken against them under section 3 of the Contempt of Courts

Act of 1926. On 16th November, 1949, the High Court

directed the issue of notices on 8 members of the Committee

to show cause why they should not be dealt with for contempt

of court in respect of certain portions of the resolution

which were set out in the notice. In answer to these

notices, the opposite parties appeared and filed affidavits.

The case was heard by a Bench of three Judges who, by their

judgment dated 5th May, 1950, came to the conclusion that

with the exception of two of the opposite parties who were

not members of the Executive Committee at the relevant date,

the remaining six were guilty of contempt of' court. It was

held that the opposite parties were not actuated by any

personal or improper motives; the statement made on their

behalf that their object was not to interfere with but to

improve the administration of justice was accepted by the

court, but nevertheless it was observed that the terms used

in the resolution were little removed from personal abuse

and whatever might have been the motive, they clearly were

likely to bring the Magistrate into contempt and

1175

lower their authority. The concluding portion of the

judgment stands as follows:-

"We think that the opposite parties acted under a

misapprehension as to the position, but they have expressed

their regrets and tendered an unqualified apology. In the

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circumstances, we accept their apology, but we direct that

they pay the costs of the Government Advocate which we

assess at Rs. 300."

It is the propriety of this judgment that has been

assailed before us in this appeal.

According to the learned judges of the High Court,, the

allegations made against the judicial officers in the

present case come within the category of contempt which is

comniitted by "scandalising the court". The learned judges

observed on authority of the pronouncement of Lord Russell

in Reg. v. Gray(1), that this class of contempt is subject

to one important qualification. The 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 the public good, no court could treat

that as contempt of court. In the opinion of the learned

judges, the complaint lodged by the appellants exceeded the

bounds of fair and legitimate criticism and in this respect

the members of the Bar Association could not claim any

higher privilege than ordinary citizens. No distinction,

the High Court held, could also be made by reason of the

fact that the charges against the judicial officers in the

present case were embodied in a representation made to

authorities who were the official superiors of the officers

concerned and under whose administrative control the latter

acted.

The learned Attorney-General who appeared in sup. port of

the appeal, characterised this way of approach of the High

Court as entirely wrong. His contention is that any act or

publication which is calculated to lower the authority or

dignity of a judge does not per se amount to contempt of

court. The test is whether the allegations are of such

character or are made in

(1) [1900] 2 Q.B 36.

1176

such circumstances as would tend to obstruct or interfere

with the course of justice or the due administration of law.

Reliance was placed by him in this connection upon certain

pronouncements of the Judicial Committee which held

definitely that an imputation affecting the character or

conduct of a judge, even I though it could be the subject-

matter of a libel proceeding, would not necessarily amount

to a contempt of court. The Attorney-General laid very

great stress on the fact that the resolutions passed and the

representations made by the appellants in the present case

were not for the purpose of exposing before the public the

alleged shortcomings of the officers concerned ; the whole

object was to have the grievances of the lawyers and the

litigating public which were genuinely felt, removed by an

appeal to the authorities who alone were competent to remove

them. Such conduct, it is argued, cannot in any way be

calculated to interfere with the due administration of law

and cannot be held to be contempt of court. The points

raised are undoubtedly important and require to be examined

carefully.

It admits of no dispute that the summary jurisdiction

exercised by superior courts in punishing contempt of their

authority exists for the purpose of preventing interference

with the course of justice and for maintaining the authority

of law as is administered in the courts. It would be only

repeating what has been said so often by various judges that

the object of contempt proceedings is not to afford

protection to judges, personally from imputations to which

they may be exposed as individuals; it is intended to be a

protection to the public whose interests would be very much

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affected if by the act or conduct of any party, the

authority of the court is lowered and the sense of

confidence which people have in the administration of

justice by it is weakened.

There are indeed innumerable ways by which attempts can be

made to hinder obstruct the due administration of justice in

courts. One type of such

1177

interference is found in cases where there is an act or,

publication which "amounts to scandalising the court itself"

an expression which is familiar to English lawyers since the

days of Lord Hardwick(1). This scandalising might manifest

itself in various ways but, in substance, it is an attack on

individual judges or the court as a whole with or without

reference to particular cases, casting unwarranted and

defamatory aspersions upon the character or ability of the

judges. Such conduct, is punished as contempt for this

reason that it tends to create distrust in the popular mind

and impair the confidence of the people in the courts which

are of prime importance to the litigants in the protection

of their rights and liberties.

There are decisions of English courts from early times

where the courts assumed jurisdiction in taking committal

proceedings against persons who were guilty of publishing

any scandalous matter in respect of the court itself. In

the year 1899, Lord Morris in delivering the judgment of the

Judicial Committee in MacLeod v. St. Aubin(2) observed that

"committals for contempt by scandalising the court itself

have become obsolete in this country. Courts are satisfied

to leave to public opinion attacks or comments derogatory or

scandalous to them." His Lordship said further: "The power

summarily to commit for contempt is considered necessary for

the proper administration of justice. It is not to be used

for the vindication of a judge as a person. He must resort

to action for libel or criminal information."

The observation of Lord Morris that contempt proceedings

for scandalising the courts have become obsolete in England

is not, strictly speaking, correct; for, in the very next

year, such proceedings were taken in Reg. v. Gray(1). In

that case, there was a scandalous attack of a rather

atrocious type on Darling J. who was sitting at that time in

Birmingham Assizes and was trying a man named Wells who was

indicted intter alia for selling and publishing obscene

literature.

(1) Vide In re Read and Huggonoson (1742) 2 Atk 469, 471.

(2) [1899] A. C. 549.

(3) (1900] 2 Q.B. 36.

1178

The judge, in the course of the trial, gave a warning ,to

the newspaper press that in reporting the proceedings of the

court, it was not proper for them to give publicity to

indecent matters that were revealed during trial. Upon

this, the defendant published an article 'in the Birmingham

Daily Argus, under the heading "An advocate of Decency",

where Darling J. was abused in scurrilous language. The

case of Wells was then over but the Assizes were still

sitting. There can be no doubt that the publication

amounted to contempt of court and such attack was calculated

to interfere directly with proper administration of justice.

Lord Russell in the course of his judgment, however, took

care to observe that the summary jurisdiction by way of

contempt proceedings in such cases where the court itself

was attacked has to be exercised with scrupulous care and

only 'when the case is clear and beyond reasonable doubt.

"Because", as his Lordship said, "if it is not a case beyond

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reasonable doubt, the court should and ought to leave the

Attorney-General to proceed by criminal information". In

1943, Lord Atkin, while delivering the judgment of the Privy

Council in Devi Prashad v. King Emperor(1), observed that

cases of contempt, which consist of scandalising the court

itself, are fortunately rare and require to be treated with

much discretion. Proceedings for this species of contempt

should be used sparingly and always with reference to the

administration of justice. "If a judge is defamed in such a

way as not to affect the administration of justice, he has

the ordinary remedies for defamation if he should feel

impelled to use them."

It seems, therefore, that there are two primary con-

siderations which should weigh with the court when it is

called upon to exercise the summary powers in cases of

contempt committed by "scandalising" the court itself. In

the first place, the rejection on the conduct or character

of a judge in reference to the discharge of his judicial

duties would not be contempt if such reflection is made in

the exercise of the right of fair and reasonable criticism

which every citizen possesses in

(1) 70 1, A. 216.

1179

respect of public acts done in the seat of justice. It is

not by stifling criticism that confidence in courts can be

created. "The path of criticism", said Lord Atkin(1), "is a

public way. The wrong-headed are permitted to err therein;

provided that members of the public abstain, from imputing

motives to those taking part in the administration of

justice and are genuinely exercising a right of criticism

and not acting in malice, or attempt to impair the

administration of justice, they are immune."

In the second place, when attacks or comments are made

on a judge or judges, disparaging in character and

derogatory to their dignity, care should be taken to

distinguish between what is a libel on the judge and what

amounts really to contempt of court. The fact that a

statement is defamatory so far as the judge is concerned

does not necessarily make it a contempt. The distinction

between a libel and a contempt was pointed out by a

Committee of the Privy Council, to which a reference was

made by the Secretary of State in 1892 (2). A man in the

Bahama Islands, in a letter published in a colonial

newspaper criticized the Chief Justice of the Colony in an

extremely ill-chosen language which was sarcastic and

pungent. There was a veiled insinuation that he was an

incompetent judge and a shirker of work and the writer

suggested in a way that it would be a providential thing if

he were to die. A strong Board constituting of 11 members

reported that the letter complained of. though it might have

been made the subject of proceedings for libel, was not, in

the circumstances. calculated to obstruct or interfere with

the course of justice or the due administration of the law

and therefore did not constitute a contempt of court. The

same principle was reiterated by Lord Atkin in the case of

Devi Prashad v. King Emperor(,') referred to above. It was

followed and approved of by the High Court of Australia in

King v. Nicholls(1), and has been accepted as sound by this

(1) Ambard v. Attney-General for Trinidad and Tobago,

[1936] A.C 322 at P. 335.

(2) In the matter of a special referencefrom the Bahama

Islands [1893] A. C. 138.

(3) 70 I.A. 216. (4) 12 Com. L. R. 280

1180

Court in Reddy v. The State of Madras (1). The position

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therefore is that a defamatory attack on a judge may be a

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. One

is a wrong done to the judge personally while the other is a

wrong done to the public. 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 if 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 affirmatively 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 admi-

nistration of law (2).

It is in the light of these principles that we will proceed

to examine the facts of the present case.

It cannot be disputed that in regard to matters of contempt,

the members of a Bar Association do not occupy any

privileged or higher position than ordinary citizens. The

form in which the disparaging statement is made is also not

material, but one very important thing has to be noticed in

the case before us, viz., that even assuming that the

statement was derogatory to the dignity of the judicial

officers, very little publicity was given to this statement,

and in fact, the appellants made their best endeavours to

keep the thing out of the knowledge of the public. The

representation was made to 4 specified persons who were the

official superiors of the officers concerned; and it has

been found as a fact by the High Court that the appellants

(1) (1952] S. C. R. 452.

(2) Mr. Mookerjea J. in In re Motilal Ghosh and Othera,

I.L.R. 45 Cal. 269 at 283.

1181

acted bona fide with no intention to interfere with the

administration of justice though they might have been under

a misapprehension regarding the precise legal position. No

copies of the resolution were even sent to the officers

concerned. Apart from the contents of the representation by

the appellants and the language use therein, this fact would

have a bearing on the questio as to whether the conduct of

the appellants brought them within the purview of the law of

contempt.

The first question that requires consideration is whether in

making the allegations which they did against the two

judicial officers, the appellants exceeded the limits of

fair and legitimate criticism. There were three resolutions

passed at the meeting; the second, and third were of a mere

formal character and do not require any consideration. The

offending statement is to be found in the first resolution

which again is in two parts. In the first part, there are

allegations of a general nature against both the officers,

but the second part enumerates under specific heads the

complaints which the Committee had against each of them

separately.

With regard to Kanhaya Lal, the a legations are that he

does not record the evidence in cases tried by him properly,

that in all criminal matters transferred to his court, where

the accused are already on bail, he does not give them time

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to furnish fresh sureties with the result that they are sent

to jail, and lastly, that he is not accommodating to lawyers

at all. So far as the other officer is concerned, one

serious allegation made is, that he follows the highly

illegal procedure of hearing two cases at one and the same

time, and while he records the evidence in one case himself,

he allows the Court Reader to do the thing in the other. It

is said also that he is short-tempered and frequently

threatens lawyers with proceedings for contempt. Some of

these complaints are not at all serious and no judge, unless

he is hypersensitive, would at all feel aggrieved by them.

It is undoubtedly a grave charge that the Revenue Officer

hears two cases simultaneously and allows the Court Reader

to do the work for him. If true

153

1182

it is a patent illegality and is precisely a matter which

should be brought to the notice of the District Magistrate

who is the administrative head of these officers.

As regards the first part of the resolution, the alle-

gations are made in general terms that' these officers do

not state facts correctly when they pass orders and that

they are discourteous to the litigant public. These do not

by any moans amount to scandalising the court. Such

complaints are frequently heard in respect of many

subordinate courts and if the appellants had a genuine

grievance,it cannot be said that, in ventilating their

grievances they exceeded the limits affair criticism.

The only portion of the resolution to which 'prima facie

objection can be taken is that which describes these

officers as thoroughly incompetent in law and whose judicial

work does not inspire confidence. Those remarks are

certainly of a sweeping nature and can scarcely be

justified. Assuming, however, that this portion of the

resolution is defamatory, the question arises whether it can

be held to amount to contempt of court. To answer this

question, we have to see whether it is in any way calculated

to interfere with the due administration of justice in these

courts, or, in other words, whether such statement is likely

to give rise to an apprehension in the minds of litigants as

to the ability. of the two judicial officers to deal

properly with cases-coming before them, or even to embarrass

the officers themselves in the discharge of their duties.

We are unable to agree with the learned counsel for the

respondent that whether or not the representation made by

the appellants in the present case is calculated produce

these results is to be determined solely and exclusively

with reference to the language or con tents of the

resolutions themselves; and that-no other fact or

circumstance can be looked into for this purpose, except

perhaps as matters which vate or mitigate the offence of

content: offence is found to have been committed that pleas

of justification or privilege are speaking available to the

defendant in contempt

1183

proceedings. The question of publication also in the

technical sense in which it is relevant in, a libel action

may be inappropriate to the law of contempt. But, leaving

out cases of ex facie contempt, where the question arises as

to whether a defamatory statement directed against a judge

is calculated to undermine the confidence of the public in

the capacity or integrity. of the judge or is likely to

deflect the court itself from a strict and unhesitant

performance of its duties, all the surroundung facts and

circumstances under which the statement was made and the

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degree of publicity a was givine to it would undoubtedly be

relevant' circumstances. It is true as the learned counsel

for the respondent suggests that the matter was discussed in

the present case among the members of the Bar, and it might

have been the subject-matter of discussion amongst the

officers also to whom copies of the resolutions were sent.

No doubt, there was publication as, is required by the law

of libel, but in contempt proceedings, that is not by any

means conclusive. What is material is the nature. and

extent of the publication and whether or not it was likely

to have an injurious effect on the minds of the public or of

the judiciary itself and therefore to interference with the

administration of justice. On the materials before us,, it

is difficult to say that the circumstances under which the

representation was made by the appellants was calculated to

have such effect. There might have been some remote

possibility but that cannot be taken note of. We are clearly

of the opinion that the contempt, if any, was only of a

technical character, and that after the affidavits were

filed on behalf of the appellants before the High Court, the

proceedings against them should have been dropped. The

result, therefore, is that the appeal is allowed and the

judgment of the High Court is set aside. There will be no

order for costs either here or in the court below in favour

of either party.

Appeal allowed..

Agent for the appellants: S. S. Shukla.

Agent for the respondents: C. P. Lal.

1184