162

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IN RE : SHRI S. MULGAOKAR

February 21, 1978

(M. H. BEG, C.J., V. R. KRISHNA IYER AND P. S. KAILASAM, JJ.J

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B Conte111p1 of Court-Newspaper article criticising the judges of Supreme

Court-If contempt-Tests for determining contempt of Court.

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Io its issue dated December 13, 1977, Indian Express published a news item

that the High Courts had reacted very strongly to the suggestion of introducing

a cede of judicial ethics and propriety and that "so adverse has been the crili ..

cism that the Supreme Court Judges, some of whom had prepared the. draft

code, have disowned it." In its issue dated December 21, 1977 an article entitled

"Behaving like a Judge." was published which inter alia stated that the Supreme

Court of India was "packed" by Mrs. Gandhi "with pliant and submissive judges

except for a few". It was further stated that the suggestion that a code of ethics

should be formulated by Judges themselves was "so utterly inimical to the inde~

pendence of the judiciary, violative of the Constitutional safeguards in that

respect, and offensive to the self-respect

of the Judges as to make one wonder

how it was conceived

in the first

place." A show cause notice had .been issued

to the Editor-in~Chief of the Newspaper why proceedings for contempt under

Art. 129

of the Constitution should not be initiated against him in respect of the

above two news items.

Dropping the contempt proceedings

H.ELD :

Per Beg, C.J.,

Proceedings before the Court should be dropped without any finding against

any individual.

[171 HJ .

1. National interest requires that all criticisms of the judiciary must

be

strictly rational and sober and proceed from the highest motives without being

coloured by any partisan spirit or tactics. This should

be a part of

nationa!

ethics. [169. G-H] •

2. The comments abQUt Judges of the Supreme Court suggesting that they

lack moral courage to the extent of having "disowned'' what they had done or

in other words, to the extent of uttering what was untrue, at least verge on con·

tempt. None could say that such suggestions would not make Judges of' this

Court look ridiculous

or even unworthy, in the estimation of the public, of the

very high office they hold if they could so easily

"diso"Wn'' what they had done

after having really done it. [166 A-Bl

3. Editors

of responsible newspapers should

be aware that it is courts of

la'v and not newspaper readers who have to try certain issues which Courts alone

3.re empowered to determine. The character and the legal consequences of any

publication about conduct

of Judges are certainly matters for Courts to deter­

mine. Editors

of newspapers are expected to know also something of the

special

place of this Court in the Republic's Constitution which amply protects its

Judges so that they may not be exposed to opprobrious attacks by either mali­

cious

or ignorant persons. [166

B·D]

4. The judiciary cannot be immune from criticism. But, when that criti·

cism

is based on obvious distortion or grossmis-statement and made in a

manner which seems designed to lower respect for the judiciary and destroy

public confidence in it, it cannot be ignored. Thou.gh action for

contempt of

Court, which is discretionary, should not be frequently or lightly taken the Court

should· not abstain from using this weapon even when its use is needed to correct

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IN RE : S. MULGAOKAR (Beg, C.J.) 163

standards of behaviour in a grossly and repeatedly erring quarter. It n1a~ be

better in

n1any cases for the judiciary to adopt a magnanimously chantable

attitude even when utterly uncharitable and unfair criticism of its

operatlons is

made uut of bona-fide concern for improvement. But, when there appears. son1e

scheme and a <lesion to bring about results which must damage confidence in the

judicial systen1 and demoralize Judges of the highest Court by making malicious

attacks, anyone interested in n1aintaining high standards of fearless, impartial,

and unbending justice will feel perturbed. [170 A-Cl

5. Although, the question whether an attack is malicious or ill intentioned,

may

be often difficult to detern1ine, yet, the language in

v.·hich it is made, the

fairness, the factual accuracy, the logical soundness of

it, the care taken in justly and properly analysing the materials before the maker of it, are important

considerations. ~loreover, in judging whether it constitutes a contempt of

Court or not the Court is concerned nlore with the reasonable and probable

effects of \vhat

is said or \vritten than with the motives lying behind what is

done.

·A decision on the question whether the discretion to take action for

contempt of Court should

be exercised in one \Vay or the other must depend

on

1he totality of facts and circumstances. [170 F-H]

Per Krishna Iyer, J. concurring

Precedenti'ally validated judicial norms relating to contempt po\vers of

Courts are : (

1) The Court will act with seriousness and severity where justice

is jeopardised by a gross and/or unfounded attack on the judges, where the

attack

is calculated to obstruct or destroy the judicial process; (2) The Court

n1ust harmonise the constitutional values of free criticism, and the need for a

fenrless curial process and

its presiding functionary, the judge. To criticise a

judge fairly albeit fiercely, is no crime but a necessary -right. Where freedom

of expression subserves public interest in reasonable measure, public justice can·

not gag it or manacle it; (3) The Court must avoid confusion between personal

protection of a libelled judge aiid prevention of obstruction of public justice and

the con1munity's confidence in that great process. The forrrler

is

not contempt,

bui

later

is, although overlapping spaces abound; (4) The fourth functional

canon is that the Fourth Estate should be given free play \vithin responsible

limits even \Vhen the focus of its critical attention is the court, including the

highest Court;

(5) The fifth normative guideline for. the Judges to observe is

not o be

hypersen<;tive even where dstortibns and critcisms overstep the limits,

but to deflate vulgar denunciation by dignified bearing and (6) The sixth con·

sideration is. that, if the Court considers the attack on the judge or judges

scrurrilous, offensive, intin1idatory or malicious beyond condonable limits, the

strong arm of the law must strike a blow on him who challenges the supremacy

of the rule pf hl\v by fouling its source and stream. [173 E, F 174F, 175 D,

E, Fl

R. v. Brett [1950] C.L.R. 226. Queen v. Gray [1900] Q.B.D., 36, Mcleod

v. St. Aubyn [1899] A.C. 549, Ambard v. Attorney~General for Trinidad

[1936] A.C. 322, R. V. Nfetropolitan Police Con1rnissioner ex. p. Blackburn

[19@] 2, W.L.R. 1204, Samb/111 Nath Jha v. Kedar Prasad Sinha & Ors. [1972)

3 SCR 183 at 189, Perspective Publications Ltd. v State of Maharast!:ra[197t]

2 SCR 779 R. C. Cooper v. Union of India [1970] 2 SCC 298, 301=[1970] 3

SCR 230. Bra/11na Praka.~h Shanna & Ors. v. The State of Uttar Pradesh [l-9531

SCR 1169 at 1178-118.0 C. K. Daphta"J! & Ors. v. 0. P. Gupta [1971] Supp.

SCR 76 at 92-93, Shn Baradakanta Mlshra v. The Rerdstrar of Orissa High

Court and Anr. [1974] 1 SCC 374=[1974] 2 SCR 282, Bridges v. California

[1941] 319 U.S. 252 at 279, 283, 284, Sheopard v. Maxwell [1966) 384 U.S

333, Nebrqska, Press Association v. S1uarts [1976] 96 Sup. Ct. 2791 Los

Angeles Tunes Case (314 U.S. 263) and Craiq v. Harney (331 US 367)

referred to. · ·

Per Kailasarn, J. concurring

Without hearing the parties concerned, it is not right and proper to make

~Y comrne~ts about the facts of the case. Contempt proceedings were dropped

without calling upon the counsel for the respondents.

[1890]

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164 SUPREME COURT REPORTS (1978] 3 S.C.R.

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ORIGINAL JuRISDTCTION : In Re : S. Mulgaokar.

V. M. Tarkunde and A. N. Goyal for the alleged contemner.

S. N. Kacker Solicitor General, Mr. R. N. Sachthey and Miss A.

Subhashini for the Sol. Genl.

JI Dr. L. M. Singhvi, D. Bhandari and S. K. Jain for the intervener.

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The following Orders of the Court were delivered

BEG, C. J.-The matter before ns arises out of a publication in the

Indian Express newspaP'ers dated 13th December, 1977. Some people

perhaps believe that atvempts to hold trials of everything and every­

body by publications tn newspapers must include those directed against

the highest Court of Ju'stice in this country and its pronouncements. If

this is done in a reasonable manner, which pre-supposes accuracy of

information about a matter on which any criticism is offered, and

argumenllS are directed fairly against a'ny reasoning adopted, I would,

speaking for myself, be the last person to consider it obj•ectionable even

if some criticism offered

is erroneous. In Bennett Coleman &

Co. &

Others v. Union of India & Ors.(') I had said (at p. 828) :

"John Stuart Mill, in his essay on "Liberty", pointed out

the need for allowing even erro'ncous opinions to

be ex­pressed on the ground that the correct ones become more

firmly established by what may

be called the

'diah2ctical' pro­

cess of a struggle with wrong ones which exposes errors.

Milton, in his "Areopagitica" ( 1644) said :

'Though all the winds of doctrine were Jet loose to play

upon the earth, so Truth he in the field, we do injuriously be

licensing and prohibiting to misdoubt her stre'ngth. Let her

and Falsehood grapple; whoever knew Truth put to the

worse, in a free and open encounter? ...... Who knows not

that Truth

is strong, next to the Almighty; she needs no

policies, no stratagems, no

Jice'nsings to make her

victorious;

those are the shifts and defences that error makes against her

power ........ '

Political philosophers and histo.rians have taught us that

intellectual advanc•es made by our civilisation would have

been impossible without freedom of speech and expression.

· At any rate, political democracy is based on the assumption

that such freedom mnst be jealously guarded. Voltaire ex­

pressed a democrat's faith when he told an adversary in

arguments

! 'I do not agree with a word you say, but I will

defend to the death yonr right to say

it'. Champions of

human freedom of thought and expression throughout the

ages, have realised that intellectual

paralysis creeps over a

Society which denies, in however subtle a form, due freedom

of thought and expression to its members.

(!) [1973] 2 S.C.R. 757 @ 828-29.

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IN RE : S. MUU:AOKAR (Beg. C.J.)

165

Although our Constitution does not contain a separate A

guarantee of Freedom of the Press, apart from the freedom

of expression.and opinidn contained in Article 19{1)

(a) of

the Constitution, yet, it

is well recognised that the

Press

provides the principal vehicle of expression of their views to

citizens.

It has been said 'Freedom of the

Press is the Ark

of the Covenant of

D_emocracy because public criticism is

esseu!Ial to the working of its institutions. Never has criti- B ,cisni been more necessary than today, when the weapons of

propaganda are

so strong and

so subtlc. But, like other

liberties, this also must

be

limited'."

I find, however, that gross distortions of what was actually held

by this Court in what is known as the Habeas Corpus case (Additional

District Magistrate, Jabalpur

v. S.

Shukla)(') are being made pre-C

sumably to serve ulterior objects. Some of tll'~se distortions have

been exposed by

me in a separate statement of detailed reasons which

place on record

my difference of opinion with the order ultimately

passed by a majority in this Court upon a case resulting from a news

item published in the Times of India rece'ntly. I have, urtfortunately,

now to take notice of a much milder publication

in the Indian Express

newspaper, in which the following sentence occurs about the

supposed D

code of judicial ethics assumed wrongly

to have been drafted by some

Judges of the Supreme Court

'

"So adverse has been the criticism that the Supreme

Court Judges, some of

whom had prepared the draft code,

have disowned

it".

E

Judges of this Court were not even aware of the cdntents of the

letter before

it was sent by me as Chief Justice of India to Chief

Justices of various High Courts suggesting, inter-alia, that Chief Jus­

tices could meet and draft a code of

ethic:s themselves or through a

Committee of Chief Justices so

as to prevent possible lapses from the

path of rectitude and propriety

on the part of Judges. The error of

the assumption that Judges of the

Supreme Court had any hand in F

drafting a code which I C(mld have. had at the back of my mind when

I sent

my suggestions to Chief Justices of High Courts was pointed

out

to the Editor of the Indian Express in a letter sent by the Regis-

trar of this Court.

No question of disowning the supposed code by

any Judge could, in

the circumstances, arise. And, I had never "dis­

owned" the suggestions made by me. The Registrar of this Court,

therefore, wrote to inform the Editor of the mis-statement which ought G

to have been corrected. In reply, the. Registrar received a letter from

the Editor showing that the contents of

my Jetter to Chief

Jus:ices

of High Courti;, which were confidential, were known to the Editor.

Instead of publishing any correction of the mis-statement about the

conduct of Judges

of this Court, the Editor offered to publish the whole

material in his possession, as though there was an issue to be tried

between the Editor of the newspaper

and this Court and the readers H

were there to try it and decide it. •

(1) A.LR. 1976 S.C. 1207.

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16 6 SUPREME COURT REPORTS [1978] 3 S.C.R.

Comments .about Judges of tbe Supreme Court suggesting that

they lack moral courage to the extent

of having

"disowned" what hety

had done, or, in other words, to

the extent of uttering what was un­

true,

at least verge on contempt. I do not think that anyone could

say that such suggestions would not make Judges

of this Court look

ridiculous or

even unworthy, in the estimation of the public, of the

very high

office they hold if they would so easily

"disown" what they

had done afer having really done

il. The

readiness with which

possible correctness of such a suggestion could

be

accepk'd by the

Editor of a newspaper has its

own implications about the general fall

in standards and values in life which Judges

~re supposed to share.

It seems to me that Editors of at least responsible newspapers

should be aware that it

is Courts of law and not newspaper readers

who have

to try certain issues which courts alone are empowered to

determine. Courts adopt a procedure designed to prevent,

as far as

possible, unfair prejudices, irrelevances, and

untruths creeping in.

The character and the legal consequences

of any publication about

conduct of judges are certainly matters for Courts to determine. Editors

of newspapers are expected to know also something

of the special place

of this Court in the Republic's Constitution which amply protects its

judges so

that they may not be exposed to opporbrious attacks by

either malicious or ignorant persons.

This Court

is armed, by article 129 of the Constitution, with very

wide and special powers,

as a Court of Record, to punish its con­

tempts. Elsewhere, I have said

in an attempt to explain the principle

of the Supremacy of the Constitution which this Court represents and

expounds:

"Thus, the principle of Supremacy of the Constitution

requires for its maintenance

in full force and vigour; firstly,

an executive which respects the judiciary and its verdicts

and

does not take away, by the exercise of its constitutional

powers, judicial powers

to deal with the rights of citizens

even against executive actions

of the State; and, secondly

the absence

of any legislative interference with judicial

functions in a manner characterised by Dean Roscoe

Pound

as "legislative lynching" of threats of any kind held out for

reaching p'!_rticular conclusions however unpalatable they

may

be to any one. Articles 121 and 211 of our Consti­

tution, prohibiting discussion of the conduct of a Supreme

Court or a High Court Judge

in the discharge of his duties

even by Parliament or a

·State Legislature, except upon a

motion for

his removal by the constitutionally prescribed

procedure

of addresses presented by each House of

Parlia­

ment after proved misconduct or incapacity of a Judge and

resolutions by

2/3 majorities of each House present and

voting, are there in our Constitution to ensure this. Can

ordinary citizens

do elsewhere, with impunity, what members

of

Parl,iament cannot do in Parliament and legislators can­

not

do in a State Legislature, and, if so, to what extent ?

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IN RE : S. MULGAOKAR (Beg, C.J.) 167

Such questions will have to be answered by Courts with A

reference to the facts

of particular cases if and when brought

to their notice."

I also said there :

.

"It would be a sad day for the supre_macy of the Consti·

tutton and for the Rule of Law, which it implies, if malicious

or

ill informed persons, filled with the irrationality involved in the spirit of what Dean Pound called "lynching" or mis­

guid('d zest or vindictiveness, acting in a manner freed from

the restraints of law or reason, were allowed to take upon

themselves the task of passing judgments on actions of others

particularly of Judges performing judicial functions. That

would certainly sound the death knell of what Dean Roscoe

Pound calls "judicial justice" and the Rule of Law. The

supremacy of the Constitution can only be maintained when

there is a spirit of law abidingness and discipline amongst

citizeus

so that principles of law can be applied

scientifi­

cally to facts by Courts of Justice, which are the custodians

of what has been described by political philosophers

as the

abiding or continuing

"Real Will" of the whole nation

embodied in the Constitution as contrasted with the

will or

wishes of some or majority of citizens for the time being

expressed

in legislatures or elsewhere. Judges, who have

taken oaths of allegiance to the Constitution, are bound to

uptold it, conscientiously without fear

er favour, afkction

or ill will'. They have to give their honest judgments with­

out caring for popular approval or disapproval."

It seemed particularly necessary to point out the protections

enjoyed by this Court and its Judges in order to safeguard.the-supre­

macy of the Constitution and the rule of law, which speak through

pronouncements of this Court, because it

was found that, soon after

the incorrect stand taken by the Editor of the Indian Express,

in the

manner mentioned above, an article appeared, entitled

"Behaving

like a Judge'', in this very newspaper. The suggestion that a code of

ethics should be formulated by judges themselves was characterised

in· this article

as

"so utterly inimical to the independence of the· judi-

6ary, violative of the Constitutional safeguards in that respect, and

·Offensive to the self -respect of the Judges as to make one wonder how

it

was conceived in the first

place". The writer of the artide assert·

ed a right of the public to know what I, at any rate, would be quite

willing to tell him

if he came to me as a citizen wanting, in good faith, eorrcct information.

The writer of an article of a responsible newspaper on legal matters

is expected to know that there

is no constitutional safeguard or

provi·

sion realing to the independence of the judiciary which could possibly

prevent Judges themselves meeting to formulate a code of judicial

ethics or to constitute a committee to formulate a code of judicial ethics

and etiquette. This is what was suggested to Chief Justices of High

Courts. Indeed,

in America, the American Bar Association has

for­

mulated a code of this kind. None has been formulated so far in this

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168 SUPREME COURT REPORTS (1978] 3 s.c.R.

rnuntry. A purported enactment which tried to prevent Judges from

meetmg and formulatmg such a code of ethics and etiquette so as

to

be

dear about points on which, at times, there is uncertainty in

the mmds of Judges themselves, would not be valid. Such a pur­

ported law would offend against article

19(1) (a) of the Constitution. Nei_ther our Constitution nor our law, could conceivably be. infring­

ed

1f Judges were to meet to device means to

prevent situations arising

!n which an accusing finger could be raised against the conduct of a

Judge, whether inside or outside the Court, let alone involving Consti­

tutional provisions of Article

124 for his removal after an inquiry

by a body constituted under the Judges Inquiry Act,

1968. A code

of this kind, if scrupulously observed by all the Judges, could only

enhance their independence and prestige and not injure these in any

way whatsoever.

This article proceeds on the assumption that there

is already a

formulated code

of ethics sent to the Chief Justices. In fact, nothing

more than some suggestions or examples of the kind of conduct which

a possible code could deal with were sent

to the Chief Justices.

If

there was anything inappropriate which could be found in those

snggestions, that could be criticised and set right or discarded. Better

suggestions could be made and incorporated in a proper code

of

judicial ethics and etiquette, if that could be framed. Indeed, in

case the Judges felt bolder, it was suggested that they could formu­

late a mode of action

to deal with allegations which are sometimes

made baselessly or maliciously against Judges.

If a Committee of

Chief Justices or Judges conld consider the allegations made against any individual Judge and was to find them baseless or malicious it

would protect the unfortunate Judge who was made a victim

of

malicious onslaughts.

On the other hand, if there was substance

in the very serious allegations which are sometimes made against

Judges

of High Courts (I am glad to say that their number is ex­

tremely small and limited), the Committee could itself forward

its

findings for appropriate action under Article 124 of the Constitu­

tion, to the Central Government which could then set up a Com­

mittee

of Inquiry. In this way, in serious cases, the Judge con­

cerned would get a consideration from his peers as well as

by the

Committee provided by the Judges' Inquiries Act, 1968.

The article of 21 December, 1977, referred to above, ends by

G atten1pting to make a distinction

.betwe~n. the wonderful performance

of

High Court Judges and the

"d1sappomtmg" record of the Supreme

Court. It was suggested there that this was due to the fact that

the Supreme Court is "packed" by the former Prime Minister, J'vlrs.

Gandhi, "with pliant and submissive judges except for a few". Ques­

tions, naturally, must arise in the public mind :

To what do they

be­

come "pliant" ? Is it to the dictates or directions of the Executive ?

When and how have they done so? Had such insinuations any factual ·).

H basis-which they,. fortunately, do not have-I ~ould, at. any rate, be

among those who would say that the sooner this Court 1s wonnd ur

the better it would be for the country.

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IN RE : S. MULGAOKAR (Beg, C./.) 169

The supposed writer of the article was evidently so shaky about

his ability

to substantiate his suggestions, on the strength of his own

knowledge or opinion, that he took shelter behind

views alleged to

have been

expre_ssed by Mr. Jayaprakash Narayan on some occasion

to the

effect alleged by him in the article. We cannot pass any

judg­

ment upon such views without giving notice to other parties, and with­

out taking evidence ·about the circumstances and the context, which

largely detennine the real meaning,

in which any opinion to that effect

may or may not have been expressed by anybody .

Mr. Jethmalani appearing for A. G. Noorani, to whom we had

issu­

ed no notice, tried to convince us that there was no intention on the

part

of the writer of the article - or the editor to injure the dignity or

position

of this Court but the intention was only to direct public

atten­

tion to matters of extreme importance to the nation. If this were so

it would be a desirable object. But, as we should all know, there are

proper and permissible

ways of carrying out such an object and others

which

are not permitted by law, or, at least by elementary rules of

fairness.

A reason

which has also weighed with me in dropping this and

a similar earlier proceeding is that, we have been passing through a

period of exccpticnal strain and stress and excitement in this country

in which unusual remarks made have not been confined to what appears

in newspapers. Indeed, extraordinary

and surprisingly erroneous

·statements. which could not be there if rules of judicial ethics we.re

formulated and strictly adhered to, have found place even in solemn

pronouncements

of this Court on rare occasions. However, I do not

want to expatiate

on that theme here. All I can say is that, if this is

a correct observation, it would also disclose a need for rules of

judi­

cial ethics or propriety for judges of even this august Court.

The statement made above by

me should remove the

misapprehen­

sion, if there was really any in the mind of whoever wrote the article

in the Indian Express of 13th December, 1977, condemning my pro­

posals for framing a code of judicial ethics on the ground, inter alia,

that it was proposed to have one only for High Court Judges. I think

that there should

be codes of ethics not merely for judges but for

occupants of every office-high or low-and for members of every

profession and calling. Without such codes, progress in right

direc­

tions in any sphere becomes more uncertain and problematic than it

could be

with such codes of ethics.

National interest requires that

all criticisms of the judiciary must

be strictly rational and sober and proceed from the highest motives

without being coloured by any partisan spirit or tactics. This

sh.ould

be a part of national ethics. Newspapers, in particular.

ought to

observe such a rule imbued with what Montesqnieu considered essen­

tial for a healthy democracy : the spirit of "virtue". They should, if

they are interested in promoting national welfare and progress, snpport

proposals for framing correct rules

of ethics for every class of office

holder and citizen in the country. And, the iudiciary must, in its

actions and thoughts and pronouncements, hold aloft the valnes and

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170 SUPREME COURT REPORTS (1978) 3 S.C.R.

A the spirit of justice and truth enshrined in the Constitution and soar

~igh above. all other lower loyalties and alignments if it is to be truly

independent. .

The judiciary cannot be immune from criticism. But, when that

criticism

is based on obvious distortion or gross mis-statement and

made

in a manner which seems designed to lower respect for the

judi-

B ciary and destroy public confidence in it, it cannot be ignored. I am

not one of those

who thinks that an action for contempt of Court, which

is discretionary, should be frequently or lightly taken. But, at the

same time, I do not think that

we should abstain from using this

weapon even when its nse is needed to correct standards of

behaviour

in a grossly and repeatedly erring quarter. It may be better. in many

cases for the judiciary

to adopt a magnanimously charitable attitude

C even when ntterly uncharitable and unfair criticism of its operations is

made out of

bona fide concern for improvement. But, when there

appears some scheme and a design to bring about results which must

damage confidence

in our judicial system and demoralize Judges of

the highest court by making malicious attacks, anyone interested in

maintaining high standards of fearless. impartial, and unbending

justice

will feel perturbed. I sincerely hope that my own undisguised

D

. perturbation at what has been taking place recently is unnecessary.

One may be able to live in a world of yogic detachment when un­

justified abuses are hurled at one's self personally, but, when the ques­

tion is of injury to an institution, such as the highest Court of justice

in the land,

one cannot overlook its effects upon national honour and

prestige

in the comity of nations. Indeed, it becomes a matter

deserv­

ing consideration of all serious minded people who are interested in

E seeing that democracy does not flounder or fail in our country. If fear­

less and impartial courts of justice are the bulwark of a healthy demo­

cracy, confidence in them cannot be permitted to be impaired by

malicious attacks upon them. However, as

we have not proceeded

further

in this case, I do not think that it would be fair to characterize

anything written or said

in the Indian Express as really malicious or

ill-intentioned and I do not do so. We have recorded no decision on

F that although the possible constructions on what

was written there

have been indicated above.

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My opinion on matters touched by my learned brother Krishna Iyer

is that, although, the question whether an attack is malicious or ill

intentioned, may be often difficult to determine, yet, the language in

which it is made, the fairness, the factual accuracy, the logical

sound­

ness of it, the care taken in justly and properly analysing the materials

before the maker of it, are important considerations. Moreover,

in judging whether it constitutes a contempt of Court or not we are con·

cerned more with the reasonable and probable effects of what is said

or written than with the motives lying behind what

is done. A decision

on the question whether the discretion to take action for contempt

of Court should be exercised in one way or the other must depend

on the totality of facts and circumstances.

After I had drafted

my reasons for dropping the proceedings I

have had the benefit

m perusing the views expressed by my learned

brother Kaifasam. I would like to make it quite clear that there is,

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IN RE: s. MULGAOKAR (Krishna Iyer, J.) 171

as I have already mentioned above, no finding given here by me against

any person. I entirely agree that it would not

be fair or legal, with­

out giving opportunities to be heard to any persons against whom any

aspersions are to be cast

or any remarks are to be made to record

findings against them. But,

I think that we are entitled to express our

separate and individual opinions for dropping the proceedings now

before us. Indeed, my separate judgment in the case relating

to the

recent publication in the Times of India case was

a dissenting one. It

was, therefore, all the more necessary for me to record my reasons for

a dissent.

In the case now before us, we are all agreed that the

pro­

ceedings should be dropped. Nevertheless, I think that we are com­

pletely justified in giving and are free to give our separate reasons

why this should be done either with

or without co=ent so long as

we do not give any finding which may be unfair to anyone. I would,

therefore, like to make it clear once again that, as the matter has not

proceeded beyond putting the cause of the notice to learned counsel

and hearing only their

prima facie reactions on whether the proceedings

should be dropped or not, we have accepted the submissmns of Mr.

Tarkunde and Mr. Jethmalani that we should not proceed further, there

is no question of recording any finding against anyone and I have not

done so. It was, however, necessary to indicate the way in which and

reasons for which the notice was issued.

It seems to me that it was

also necessary for me to refer to the reasons why I consider codes of

ethics, and,

in particular, judicial ethics are necessary. That is a

matter of conscience and of my understanding of what is right for a

judge to do "without fear or favour, affectii0n or ill will".

The need for appropriate standards relating even to what our judg­

ments should or should not co·ntain is so great that I think this matter

has to be taken up soon by Judges themselves at some stage or other.

Even the difference

of

vkws between learned judges of this Court on

such a question illustrates that.

Tf we had clear rules of judicial prac­

iice and ethics

on even such matters our judgments would

nae be

encumbered with what should not be there. If such rules arc absent

1here may be, sometimes, serious disagreement as to what a judgment

should or should not contain.

In such a case, the only sound rule I

could follow is to hear all those who are to be heard according to law hut no others and then to express the opinion I feel bound by my

conscience to express without allowing any other o.onsideration to

weiQh with me.

As I have alpeady pointed out above, I think that the need for

appropriate norms of conduct exists

in practicaJ!v every sphere of life

i'n which

cnliQhtened people strive to attain exalted ends irrespec'ive

of conS>oquences. If our separate statements of reasons for drooping

the proceedings before us succeed ifr at least emphasizing that need they

would not have been made in vain. I concur in the order that the

proceedings. before us be dropped at this stage without any finding

against any individual.

KRISHNA IYER, J.-Silence is no sanctuary for me when speech

. from the Chief Justice persuades my pen into a divergent course. I

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172

SUPREME COURT REPORTS [1978) 3 S.C.R.

profoundly appre~iate and deeply respect his sense of hurt and obliga­

tion for explanation but prefer

to travel along another street in stating

why I agreed to jettison the contempt proceedings. My judgment

i~

more an explanation than an expostulation and certainly not a reflection

on the respondents.

We had unanimously directed that the above proceedings in

con­

templatio"n of contempt action be dropped but the fact that we had

converged to this conclusion did not rule

out-as is now

appar~m-our

divergence in the process of reasoning. Minds differ as rivers differ.

Such, perhaps, in part, is the case here.

The contempt power, though jurisdictionally large, is discretionary

in its unsheathed exercise. Every commission of contempt need not

erupt

in indignant committal or demand punishment, because judges

are judicious, their valour

non-vioknt and their wisdom goes into

action when played upon

by a volley of values, the least of which is

perso"nal protection-for a wide discretion, range of circumspection

and rainbow of public considerations benignantly guide that power.

Justice

is not hubris; power is not petulance and prudence is not

pussilanimity, especially when judges are themselves prosecutors ana

mercy

is a mark of strength, not whimper of weakness. Christ

a"nct

Gandhi shall not be lost on the judges at a critical time when courts

are on trial and the people ("We, the People of India") pronounce

the final verdict on

all national institutions. Such was the sublime

perspective, not plural little

factors, that prompted me to nip in the

bud the proceeding started for serving a larger cause of public jus1ice

than punitive action against a publisher, even assuming (withom

admitting) he was guilty. The prelimmary proc•eeding has been buried

publicly; let it lie in peace. Many values like free press, fair trial,

judicial fearlessness and community

confide"nce must generously

ent•er

the verdict, the benefit of doubt, without absolutist insistence, being

extended to the defendant. Such are the dynamics of power in this

special jurisdiction. These diverse indicators, carefully considered,

have persuaded me to go no further, by a unilateral decision of the

bench. This closure has two consequences. It puts the lid on the

proceedings without pronouncing

on the guilt or otherwise of the

opposite parties.

In a quasi-criminal action, a presumption of inno­

cence operates. Secondly, whatever belated reasons

we may give for

our action,

we must not proceed to substantiate the accusation. if any.

To

co"ndemn unheard is not fairplay. Bodyline bowling. perhaps.

is

not crick•et. So my reasons do not reflect on the merits of the

charge.

Poise and peace and inner harmony are so quintessential to the

judicial temper that huff, 'haywire' or even humiliation shall not

besiege; nor, unveracious provocation, frivolous persiflage nor termino­

logical i"nexactitude throw into palpitating tantrums the balanced cere­

bration of the judicial mind. The integral yoga of

shanli and neeti

Is so much the cornerstone of the judicial process that criticism, wild

or valid, authentic or anafhematic, shall have little purchase over the

mentation of the court. I quite realise how hard it

is

to resist, with

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IN RE : s. MULGAOKAR (Krishna Iyer, /.) 17 3

sage silence, the shafts. of acid speech; and, how alluring it is to A

succumb to the temptatton of argumentation where the thorn, not the

rose, triumphs. Truth's taciturn strategy, the testimony' of history

says, has a higher power than a hundred thousand tongues or pens. In

contempt jurisdiction, silence

is a sign of strength

since our power is

wide and we are prooecutor and judge.

Why did I concur in the short order ? Why do I now strike a

B

variant note to that of the learned Chief Justice ? I do not take up the

position that

~andalising the Judges d-Oes not come within the con­

tempt clutches of the court. The Court's jurisdiction to initiate pro­

ceedings and punish for constructive contempt suo motu crystallized

l'1 the eighteenth century ev·~n though it is clear that the Court's in­

herent powers in this regard were not as wide as Wilmot J. made them

out

to be in his posthumously published opinion in R. v. Almon [1765 C

published in

(1802) Wilmot's opinions] (

1

). Fortunately, the attacks

on the judiciary have been comparatively few in most cou'ntnes, having

regard to the character assassination

of the personnel in the other great

branches of Government. Even

so. the law which punishes those who

scandalize judges

is as old as the Common Law itself. The

exMence

of the contempt power, however, does not obligate its exercise on

every occasio'n but triggers it only in special situations, not routinely.

D

What then are the complex of considerations dissuasive of puniti\'e

action

? To

b~ exhaustive is a baffling project; to be pontifical is to

be impractical; to be flexible

is to be realistic. What, then, ate these

broad guidelines-not a complete inventory, but precedentially

vali­

dated judicial norms ~

The first rule in this branch of contempt power is a wise economy

cf use by the Court of this branch of its jurisdiction. The Court will

act with seriousness and severity where justio~ is jeopardiz~d by a gross

and/or unfounded attack on the judges, where the attack is calculated

to obstruct or destroy the judicial process. The court

is willing to

ignore, by a majestic liberalism, trifling and

venial offenses-the dogs

may bark, the caravan will pass. The court will not be prompted to

act

as a result of an easy irritability.

· Much rather, it shall take noetic

look at the conspectus of features and be guided by a constellation ot

constitutional and other considerations when it chooses to use, er

desist f.rom us.ing, its power of contempt.

The

second principle must be to harmonise the constitutional

value;

of free criticism, the fourth estate included, and the need for a f;!arless

curial process and its presidii1g functionary, the judge. A happy

balance has to be struck, the benefit of the doubt being given generously

against the judge, slurring over marginal deviations but severely pro-

ving the supremacy of the

Jaw over pugnacious, vicious, unrepentant

and malignant contcm'ners,

be they

t\le powerful press, gang-up of

vested interests, veteran columnists or olympian establishmentarians.

Not because the judge, the human symbol of a high value,

is personally

(I)

See further R. Dhavan : "Contempt of Court and the Phillimore Committee

Report" (1976) 5 Anglo A1nerican Law Review, 186 at 194 and the literature

cited there.

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SUPREME COURT REPORTS (1978] 3 S.C •. R.

armoured. by a regal privilege but because 'be you-the contemner­

ever. so high, the law-the People's expression of Justice-is above you.

Cun.al courage overpowers arrogant might even

as judicial

bonignity

fo'.g1ves cr~ailt or ex~ggerated critics. Indeed, to criticise the judge

fauly, albeit fiercely, is no crrrne but a neo;,ssary right twice blessed

in a democracy. For, it blesseth him that gives and him that takes.

~here freedom of expression, fairly exercised, subserves public interest

m re'.IBo~able measur~, public justice cannot gag it or manacle it,

conshtutmnally speaking. A free people are the ultimate guarantors

of fearless justice. Such is the cornerstone of our Constitution; such

is th.e touchstdnc of our Contempt Power, oriented on the confluence

of free speech and fair justice which is the scriptural essence of onr

Fundamental Law. Speaking of the social philosophy and philosophy

of law in an integrated manner as applicable to contempt of court,

there is no conceptual polarity but a delicate balance, and judicial

'sapience' draws the line. As it happens, our Constitution-makers

foresaw the need for balancing all these competing interests. Section

2(1) (c) of the Contempt of Courts Act, 1971 provides :

"Criminal contempt" means the publication (whether by

words, spoken or written, or by signs, or by visible represen­

tations, or otherwise) of a·ny matter or the doing of any

other act whatsover

which-

(i) scandalises or tends to scandalise, or Jowers or tends

to lower

th•o aulhorily of any court."

This is an extremely wide definition. But, it cannot be read apart

from the conspectus of the con5titutional provisions within which the

Founding Fathers of the Constitutio"n intended all past and future

statutes

to have meaning. All Jaws

relating to contempt of court had,

according

to the provisions of Article 19(2), to be

"reasonable res­

trictions" on the exercise of the right of free speech. The courts were

given the

power-and, indeed, the responsibility-to harmonize

conflict­

ing aillllS, i"ntercsts and values. This is in sharp contrast to the Philli­

more Committee

Report on Contempt of Court in the United Kingdom (197~) bu11d. 5794 prs. 143-5, pp. 61-2) which did not recommend

the defence of public interest in contempt cases. ·

The third principle is to avoid confusion between personal protec­

tion of a libelled judge a·nd prevention of obstruction of public justice

and the communitv's confidence in that great process. The former is

not contempt, the" latter is, although overlapping spaces abound.

Because the

Jaw of contempt

exists to protect public confidence

in the administration of justice, the offence

will not be committed by

attacks upon the

perso\101 reputation of individual judges as such. As

Professor Goodhart has put it :

"Scandalising the court means any hostile criticism of the

judge

as judge; any personal attack upon him,

unconnec'.ed

with the office he holds, is dealt with nnder the ordinary

rules of slander and libel."

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IN RE : s. MULGAOKAR (Krishna Iyer, !.) n 5

(See 'Newspapers and Contempt of Court' (1935) 48, Harv.

L. R. 885, 898.)

Similarly, Griffith, C.

J. has said in the Australian case of Nicholls(')

that : "In one sense, no doubt, every defamatory publication

concerning a judge may be said to bring him into contempt B

as that term is med in the law of libel, but it does not follow

that everything said of a judge calculated to bring him into

contempt in that sense amounts to contempt of Court."

Thus in ln the matter of a Special .Reference from the Bahama

Island(') the Privy Council advised that a contempt had not been com-

mitted through a publication

in the Nassau Guardian concerning the C

resident Chief

Jus:ice, who had himself previously criticised local sani-

tary conditions. Though couched in highly sarcastic terms the publi­

cation did not rder to the Chief Justice in his official, as opposed

to personal, capacity. Thus while it might have been a libel

it was not

a contempt.

The

fourth functional canon which channels discretionary exercise ()

of the contempt power

is that the Fourth Estate which is an indis­

pensable

intermediary between the State and the people and necessary

instrumentality in strengthening the forces of democracy, should be

given free play within responsible limits even whe'n the focus of its

critical attention

is the court, including

the highest Court.

The

fifth normative guideline for the judges to observe in this juris-E

diction

is not to be hypersensitive even where disortions and criticisms

overstep t

11e limits, but to deflate vulgar denunciation

~'Y dignified bear-

ing, condescending indifference and repudiation by judicial rectitude.

The sLtth consideration is that, after evaluating the totality of

factors, if the court considers the attack on the judg.; or judges

scurrilous, offensive, intimidatory or malicious beyond co'ndonabk

F.

limits, the strong arm of the law must, in the name of public interest

and public justice, strike a blow on him who challenge> the supremacy

of

the rule of law by fouling its source and stream.

Speaking generally, there arc occasions when the right to comment

may be of suoreme value (for instance. the thalidomide babies cases

in England)(') and the law of contempt must adjust competing values G

and be modified, in its aoplication by the requirements of a free society

and the shifting emphasis on paramount public in~erest in a given

situation.

(I) (1911) 12 C.L.R. 280, 285.

(2) (1893) A.C. 138.

(3) I prefer the judgment of Lord Denning M. R. in the Court of Appeal to those H

in the Divisional Court or House of Lords in the Thalidomide case: All. Gen.

v. Times Newspapers Ltd. (1972) 3 All. E.R. 1136 (D.C.) ; (1973) I All. E.R.

815 (C.A.) ; (1973) 3 All. E.R. 54 (H.L.).

176 SUPREME COURT, REPORTS · [1978] 3 S.C.R.

A Indeed, there is an interesting Australian decision R. V. Brett(')

which has a meani'ngful relevance for our cai;e and I quote from the

Australian Law Journal :

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"In R. v. Brett, the publisher of a: newspaper was called

on to show cause why he should not be committed for con­

tempt of court.

It appeared that the newspaper, under the

heading

"Mr. Justice Sholl-Diehard Tory" had criticised

the appointment of Mr. Justice Sholl and inferentially of all

his brethren except one not specified, because they

were out

of touch with. the life of the people

and had no experience

(it was alleged) in the Criminal Court "the only court where

even a semblance of the problems of the people arise". and

it concluded that his appointment showed that the judiciary

was "an institution forming an integral part of the repressive

machinery of the State".

"O' Bryan, J. pointed out that the fact that the article

made ridiculous mistakes of fact and that its logic was greatly

at fault, did

'not prove that it was a contempt. The question

was whether the article, honestly though mi·stakenly and

offensively, criticised the policy of this and previous adminis­

trations in appointinl; judges, or whether it did indeed set out

to lower the authonty of the Court as sucn and to excite

misgivings

as to its partiality. With very great hesitation,

his Honour

came to the conclusion that a case for the exer­

cise of the extra-ordinary summary .iurisdiction of the Court

had

'not been made out and he discharged the order

nisi."

Another useful illustration from the Australian jurisdiction is con­

tained in short report made of a decision in Australian Law Journal,

1928-29, Vol.

2, 145-146 : "The Tasmanian case (The King v. Ogilvie) concerned

statements made by the respondent

at public meeti'ngs, im­

puting lack

of impartiality to Mr. Justice Crisp, and assert­

ing that the respondent was personally disliked by

his

Honour, and that respondent's clients could not get justice

from him. Nicholls,

C. J., in delivering the judgment of

the Court,

agreed with the authorities that fair comment o:n

judicial actions is not only justifiable, but beneficial. He

then pointed out "that we regard these preceedings as insti­

tuted and our pow~rs conferred, not for the benefit or com­

fort of the Judges personally, to protect them from criticism

or even from libel, but simply

to secure that this institution,

the Supreme Court, which in the final analysis has

to declare

and enforce the rules which hold the community together,

shall be challenged only in the proper ways, which are two"

first, by appeal, and secondly by approach i'n the proper form

to Parliament."

(I) (1950) C.LR. 226.

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IN RE: s. MULGAOKAR (Krishna Iyer, l.) 177

A quick flash back to English decisions also is instructive. As

early as i900 in Queen v. Gray(') Gray published in a newspaper

an article which was "personal scurrilous abuse of a judge as a judge"

Lord Russel of Killowen C. J. observed :

"It is not too much to say that it is an article of

scurrilous abuse

of a judge in his character of a judge­

scurrilous abuse, in

ref,rence to the conduct of the judge

while sitti'ng under the Queen's Commission, and scurrilous

abuse published in a newspaper

in the town .in which he was

still sitting under the Queen's Commission. It cannot be

doubted-indeed it has not been argued to the contrary by

the learned counsel

who represents Howard Alexander

Gray-that

the article does constitute a contempt of Court;

but,

as these applications are, happily, of an unusual charac­

ter,

we have thought it right to explain a little more fully

than

is perhaps necessary what does constitute a contempt

of Court, and what

are the means which the law has placed

at the disposal

of the Judicature for checking and punishing

contempt of Court.

Any act done or writing published cal­

culated to bring a Court

or a judge of the Court into con­

tempt, or

to lower his authority, is a contempt of Court.

That

is one class of contempt. Further, any act done or

writing published calculated to obstruct or interfere with

t~e

due course of justice or .the lawful process of the Courts 1s

a contempt of Court. The former class belongs to the cate­

gory. which Lord Hardwicke L. C. characterised as "scanda­

lising a Court or a Judge."

The learned Law Lord, however. indicated a guideline which is extre-

mely important : ·

"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 or would treat that m· contempt of Court. The Jaw

ought not to be astute in such cases to criticise adversely

what under such circumstances and with such an object is

published; but it is to be remembered that in this matter the

liberty of the press is no greater and no less than the liberty

of every subject

of the Queen. Now, as I have said, no one

has

suggested that this is not a contempt of Court a'nd no­

body has suggested,

or could suggest that it falls within the

right of public criticism

in the sense I have

describ~d. It is

not criticism : I repeat that it is personal scurrilous abuse

of a

.iudge as a judge .....

.''

(emphasis, added)

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The tone of R. v. Gray (supra) sharply contrasted with the much H

more liberal tone adopt·~d by the Privy Council in McLeod v. St.

(1) (1900) Q.B.D. 36.

178 SUPREME COURT REPORTS [1978] 3 S.C.lt·

A Aubyn (') even though certain aspects of the latter decision assume a

somewhat imperialist tone. Dr. Rajeev Dhavan has observed :

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"For some stra'.ng;~ reason the Privy Council judgment

was neither referred to by the Chief Justice or even cited to

the Court even though a time

Jag of nine months

separates

the two judgments".(

2

)

A harmonious blend and a balanced co-existence of a free press and

fearless justice desidcrates that

the law ought not to be too astute in

such cases and that public criticism has a part to play,

even if it over­

steps the limit, in preserving the democratic health of public insti­

tutions. But beyond a point, the wages of contempt

is committal.

In

Ambard v. Attorney-General for Trinidad(

3

) the Privy Council

pronounced on a case of public criticism of the administration

of jus­

tice. Lord Atkin stated, with admirable accuracy, the

law on this

branch of contempt of Court : "But whether the authority and position of an individual

judge, or the due administration of justice,

is concerned, no

wrong

is committed by any member of the public who exer­

cise the ordinary right of cnticising, in good faith, in private

or public, the public act done in the seat of justice.

Th~

path of criticism is a public way : the wrong headed are per­

mitted to err therein : provided that members of the public

abstain from imputing m1proper motive<; to those takmg

part in the administration of justice, and are genuinely exer­

cising a right of criticism, and not acting

in malice or attempt­

ing to impair the admi'nistration of jus!ice,

th·~y 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."

Indeed, Loni Morris in Mcleod v. St. Aubyn (supra) has commenled:

"Courts are satisfied to leave to public opinion attacks

or comments derogatory or scandalous to them. But it

most be considered that in small colonies, consisting princi­

pally of coloured populations, the enforcement in proper

cases of committal for contempt of Court for attacks on the

Court may be absolutely ne<:essary to preserve in such a

community the dignity of and respect for the Court.''

In will not condemn the Indian people with the contempt manifest

in Lord Morris' observation regarding small colonies and coloured populatims. We arc cultured people with traditions and canons and

may at least be equated in these matters with English men.

(I) [1899]

A.C. 549.

(2) See R. Dhavan : "Oonternpt of Court and the Phillimore Committee RePDrt"

(1976) 5 Anglo A1nerica11 Law Rel'iew 186 at 205.

(3) (1936) A.C. 322.

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A very valuable and remarkably fresh approach to this question

of criticism

of Courts in intemperate language and invocation of con­

tempt of court against the contemner, a person of high

position, is

found in

Regina v. Metropolitan Police Commissioner ex. p. Black­burn('). Lord Dennin g's judgment is particularly instructive in the

context of the obnoxious comments made by Quintin Hogg in an arti­

cle

in

"Punch" about the members of the Court of Appeal. The

remarks about the Court

of Appeal were highly obnoxious and the

barbed words thrown

at the judges obviously were provocative. Even

so, in a brief but telling judgment, Lord Denning held this not to

be·

contempt of court. It is illuminating to excerpt a few observations

of the learned judge :

"This is the first case, so far as I know, where this court

has been

ca11ed on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly be­

longs to

us but which we will most sparingly exercise :

more particularly

as we ourselves have an

interest in the

matter.

Let

me say at once that we will never use this jurisdiction

as

a means to uphold our own dignity. That must rest on

surer foundations. Nor will

we use it to suppress those who

speak against us.

We do not fear criticism, nor do we

re­

sent it. For there is something far more important at

stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it. in

the Press or over the broadcast, to make fair comment, even

outspoken comment, on matters of public interest. Those

who comment can deal faithfully with all that

is done in a

court

of justice. They can say that we are mistaken, and

our decisions erroneous, whether they are subject to appeal

or not.

All we wou:d ask is that

thos•e who criticise us

will remember that, from the nature of our offic•c, we can­

not reply to their eriticismE. We cannot e·nter into public

controversy. Still less into political. We must rely on our

conduct itself to be

its own vindication.

Exposed as we are to the winds of criticism, nothing which

is S3id by this person or that, will deter us from doing what

we believe is right; nor, I would add, from saying what the

nccas1on requires, provided that it is pertinent to the matter

in hand. Silence is not an option when things are ill done."

The Indian precedents must naturally receive referential attention

from

us and so I

switch over to the cases of this Court which have

relevance to that branch

of the contempt jurisprudence bearing upon scanclafoing the judges. After a brief survey, I will summarise the

conclusions~ In Sambhu Nath Iha v. Kedar Prasad Sinha & Ors.(•)

(I) (1968) 2 W.L.R. 1204.

(2) [1972] 3 S.C.R. 183, 189.

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180 SUPREME COURT REPORTS [1978] 3 s.c.R.

"ll would follow from the above that the courts have

power to take action against a person who does an

act or

publishes a writing which is calculated to bring a court or

judge into contempt

or to lower his authority or to obstruct

tho due course of justice or due administration of law ....

in such cases. the court would exercise circumspection and

judicial restraint

in the matter of taking action for contempt

of court. The court has

to take into account the surround­

ing circumstances and the material facts of the case and on

conspectus of them

to come to a conclusion whether be­

cause of some contumacious conduct or other sufficient rea­

~on the person proceeded against should be punished for

contempt of court."

C Jn Perspective Publications Ltd. v. State of Maharashtra(') Grover,

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.J., speaking on behalf of the Court, reviewed the entire case law and

stated the result of the discussion of the cases

on contempt as follows :

"(!) It will net be right to say that committals for

contempt for scandalizing the court have become obsolete.

(2) The summary jurisdiction by way of contempt must

be exercised with great care and caution and only when its

exercise

is necessary for the proper administration of law and

Justice.

(3) It

IS open to anyone to express fair, reasonable and

legitimate criticism of any act or conduct of a judge in his

judicial capacity or even

to make a

proper and fair com­

ment on any decision given by him because "justice is not

a cloistered virtue and she must be allowed to suffer the

scrutiny and respectful, even though outspoken, comments

of ordinary

men."

1

( 4) A distinction must be made between a mere libel

or defamation of a judge and what amounts to a contempt

of the Court.

The test in each case would be whether the impugned

publication is a mere defamatory attack on the judge or

whether it is calculated to interfere with the due course ol

justice

or the proper administration of Jaw by this Court.

It is only in the latter case that it will be punishable

a8

Contempt.

(5) Alternatively the test

will be whether the wrong is

done to the judge personally or it is

done to the public.

To borrow from the language of Mukherjee,

J. (as he then

was) (Brahma Prakash

Sharma's Case) (1953) S. C. R.,

J 169) the publication of a disparaging statement will . be

an injury to the public

if it tends to create an apprehension

in the

minds of the people regarding the integrity, ability

(1) [1971] 2 S.C.R. 779.

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IN RE: s. MULGAOKAR (Krishna Iyer, ].) 181

or foirnes of the judge or to deter actual and prospective A

litigants from placing complete reliance u·pon the court's

administration of justice or

if it is likely to cause embarrass-

ment in the mind of the judge himself in the discharge of

his judicial

duties."

Hidayatullah, C. J., in R. C. Cooper v. Union of India(')

observed : 8

"There is no doubt that the Court like any other insn­

tution does not enjoy immunity from fair criticism. This

Court does not claim to

be always right although it does not

srarc any effort to be right according to the best of the

ability, knowledge and judgment of the judges. They

do

not think themselves in possession of all truth or hold that

wherever others differ from them, it

is so far error.

Na

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 . . . . . . . . W c are constrained

to say also that

while fair and temperate criticism of this Court or any other

Court even if strong. may not be actionable, attributing im­

prop<r motives, or tending to bring judges or courts into

t.atred 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 accept­

able but also from those to whom it

is repugnant. Those

who err

in their criticism by indulging in vilification of the

instilution of courts, adn1inistration of justice and the instru­

ments through which the administration acts. should take

heed for they

will act at th.cir own peril. We think this

will be enough caution to persons embarking on the path of. criticism."

In Brahma Prakash Sharma and Others v. The State of Uttar

Pradesh (

2

) this Court said :

"lt seems, therefore, that there are two primary consi­

derations 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. Jn the first

place, the reflection

on the conduct or character of a

judge

in reference to the discharge of his judicial duties would

not be contempt of such reflection is made in the exercise

of the right of fair and reasonable criticism which every

citizen possesses in 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 (Ambard

v. Attorney-Oeneral

for Trinidad and

(1) (1970) 2 s.c.c. 298, 301.

(2) (1953) S.C.R. 1169, ll78, ll80.

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182 SUPREME COURT REPORTS (1978) 3 S.C.R.

Tobago, (1936) A.C. 322 at 335) is a public way. The

wrong headed

are permitted to err 'therein; provided that

mem

oers 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."

Jn the second place, when attacks or comments .are made

on a judge or judges, disparaging in character and dero­

gatory 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 neces­

sarily make

. it a contempt. The distinction between a

libel and a contempt was pointed out

by a Committee of the

Privv Council, to which a

referei1ce was made by the Secre­

tary of State in 1892 (In the matter of a special reference

from the Bahama Islands

(1893) A. C. 13 8). A man in the

Bahama Islands, in a letter published in a colonial newspaper criticised 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 Jetter

complained of, though it might have been made the subject

of proceedings for libel, was not, in the circumstances. cal­

culated

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 (70 I. A., 216) referred to above. It was

followed and approved of

by the High Court of Australia

in

King v. Nicholls (12 Com. L. R. 280), and has been

accepted as sound

by this Court in Reddy v. The State of Madrus (1952) S. C.R., 452). The position 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

procc(d against the libeller 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.

Tt will be an injury to the public if it tends to

create an apprehension in the minds of the people regard-.

ing the integrity, ability or fairness of the judge

or to deter

actual and prospective litigants from placing complete re­

liance 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

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IN 11.E : s. MULGAOKAR (Krishna Iyer, !. ) 1 8 3

<"stablishcd that it is not necessary to prove affirmatively that A

there has been an actual interference with the administration

or justice by reason of such defamatory statement; it is inter-

ference with the proper administration of law."

( \1•:. Mookerjce J. in /11 re: Motilal Ghosh and Others

!LR, 45, Cal., 269 at 283.)

There is no doubt that condign and quick punishment for scanda-B

lising publication has been awarded by this Court, (Vide c. K. Daph-

lary & Ors. v. 0. P. Gupta(')

Another one is Shri Baradakanta Mishra v. The Registrar of

Orissa High Court ·and Another('). In the latter case, I had occasioll

to examine the root principles of Indian Contempt jurisprudence and

I summed up thus :

"Judges and Courts have diverse duties. But function­

ally, historically and jurisprudentially, the value which

is

clear to the community and the function which deserves to

be cordoned off from public molestation, is judicial. Vicious

criticism

of personal and administrative acts of Judges may

indirectly mar their image and weaken the confidence

of the

public

in the judiciary but the countcrveiling good, not mere­

ly of free speech but also of greater faith generated by ex­

posure to the actinic light of bona fide, even if marginally

over-zealour, criticism cannot be overlooked. Justice

is no

cloistered

virtue."

"The Court being the guardian of people's rights, it ha•

been held repeatedly that the contempt jurisdiction should

be exercised "with scrupulous care and only when the case

i; clear and beyond reasonable doubt"."

I relied on an observation made by Justice Gajendragadkar, C.J.,

In Special Reference No . .1 of 1964 and proceeded to state the key

to the iurisdiction :

"We ought never to forget that the power to punish for

contempt, large as it

is, must always be exercised cautiously.

wisely, and with circumspection. Frequent or indiscrimi­

nate use

of this power in anger or irritation would not help

to sustain the

dignity or status of the court, but may some­

times affect

it adversely. Wisc Judges never forget that

the hest way to sustain the dignity and status

o! their office

is to deserve respect from the public at large by the quality

of their judgments. the fearlessness, fairness and objectivity

of.their approach, and by the restraint, dignity and decorum

which they observe

in their judicial conduct.''

Jf judges decay the contempt power will not save them and so the other side of the coin is that Judges, like

Caesar's wife, must be above suspicion.

(I) (1971) Supp.

S.C.R. 76, 92-93.

~2) (1974) I S.C.C. 374.

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184 SUPREME COURT REPORTS [1978] 3 S.C.R.

To wind up, the key word is "justice", not "judge"; the

key-not thought is unobstructed public justice, not the self­

defence

of a judge; the cornerstone of the contempt law is

the accommodation of two constitutional valnes-the right

of

free speech and the right to independent justice. The

ignition of c_ontempt action should be substantial and mala

fide interference with fearless judicial action, not tair com­

ment or trivial reflections on the judicial process and per­

sonnel."

Indeed, I am convinced that democratic institutions, including the

Court system and judges, must suffer criticism and benefit from it

This approach

has been emphasised by me in that ca'se :

"Even so, if Judges have frailties-after all they are

human-they need to be corrected by independent criticism.

If the judicature has serious shortcomings which demand

systemic correction through socially-oriented reform initiated

through constructive criticism, the contempt power shouid

not be an interdict. All this, far from undermining t!le con­

fidence of the public

in Courts, enhances it and, in the

last

analysis, cannot be repressed by indiscriminate resort to

contempt power. Even bodies like the Law Commission

or the Law Institute and researchers, legal and sociological,

may run 'contempt' risks because their professional work

sometimes involves unpleasant criticism of judges, judicial

processes and the system itself

a_nd thus hover perilously

around the periphery of the law

if widely construed. Crea­

tive

kgal journalism and activist statesmanship for judicial

reform cannot be jeopardised

by an undefined apprehension of contempt_ action."

American legal history has lessons for us but when national con­

ditions vary adaptation, not imitation, is the creative alternative, to

avoid breakdown on the rock of real life. New York is not New

Delhi and New York Times deals with different customers from the

Times of India. The law of contempt fluidly

flows into the mould .:if life. This fact once noted, there is instructive. thought in the

American cases.

Their lofty approach, grounded on constitutional values, has an

appeal for us. The issue is one of the

w-avest moment for free

peoples and to choose between the cherished basics of free expression

and fair hearing is a trying task. For a free press it may be an;ued

.~s did the U. S-judges :

"What is at stake here is a societal function of the First

Amendment

in preserving free public discussion of govern­

mental affairs

.... (P)ublic debate must not only be unfetter­

ed; it must also be informed. For that reason this Court

has repeatedly stated that First Amendment

cieJncerns en­

compass the receipt of information and ideas

as well as the

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IN RE : s. MULGAQKAR (Krishna Iyer, J.) 185

right of free expression. . . . . . An informed public depends A

on accurate and effective· reporting by the news media.

No individual can obtain for himself the information needed

for the intelligent discharge of his political responsibilities.

For most citizens the prospect

of personal familiarity with

newsworthy events

is hopelessly unrealistic. In seeking

out the news the press therefore acts as an agent of the

public at large.

B·

It is the means by which the people receive that free

flow of information and ideas essential to intelligent self­

government.

By enabling the public to assert meaningful

control over the political process, the press performs a cru-

cial function

in effecting the societal purpose of the First

Amendment. That function

is recognized by specific

re­

ference to the press i'n the text of the Amendment and by the

precedents of this Court.

The argument further asserts that a curtailment of press

freedom

is a

seriou·s matter. If they can be justified at all,

it must· be in terms of some serious substantive evil which

they are designed to avert. The substantive evil here sought

to be averted has been variously described below.

It

appears to be double disrespect for the judiciary; and dis­

ord~rly and unfair administration of justice. The assump­

tion that respect for the judiciary can be won by shielding

judges from published criticism wrongly appraises the charac­

ter of American public opinion. For it

is a prized American

privilege to speak one's mind, although not always with

perfect good taste, on all public institutions.

And

an enforced silence, however limited, solely in the name of

preserving the dignity

of the bench, would probably engender

resentment, suspicion, and contempt much more than

1t would

enhance

respect."

We may glance at the vigorous dissent cf Mr. Justice Frankfurter

to this reasoning in Bridges v. California(')

"Our whole history repels the view that it is an exercise

nf one of the civil liberties secured by the Bill of Rights

for a leader of a large following or for a powerful metro­

politan newspaper

to attempt to overawe a judge in

the

matter immediately pending before him. The view of the

majority deprives California of means for securing

to its

citizens justice according to

law-means which, since

the

Union was founded, have been the possession, hith.:rt0

unchallenged, of all the states. This sudden break with the

uninterrupted course

of

con~tit'!tion~l history has no ~on~ti­

tntional warrant. To find iusllfica!Jon for snch depnvat10n

of the historic powers of the states is to misconceive the idea

of freedom of thought and speech

as gnaranteed by the

Constitution

.....• "

(1) [19411 319 U.S. 252, 279; 283, 284.

13-211 SCI/78

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SUPREME COURT REPORTS [1978] 3 S.C.R.

A irial is not a "free yade in ideas," nor is the besl test

of truth m a courtroom ' the power of the thought to get it-

•el! accepted in the competition of the market" ........ A

court i~ a forum with strictly defined limits for discussion.

It 1s mcnmscribed i~ th.e range of its inquiry and m its

1'.'ethods bl'. the Consl!tutwn, by laws, and by age-old tradi­

l!ons._ Its. 1ud,ges are restrained in their freedom

1

o'f expres­

swn oy h1stonc compulsions resting on no other officials of

~overnmcnt. . The~ are S? circumscribed precisely because

Judges have m their keepmg the enforcement of rights and

the protection of liberties which, according to the wisdom

of

the ages, can only he enforced and protected by

observi!}g

such methods and traditions.

........ The Fourteenth Amendment does not forbid a

state

to continue the historic process of prohibiting

expres­

sions calculated to subvert a specific exercise of judicial

power.

So to assure the impartial accompli'shment of justice

is not an abridgment of freedom of speech or freedom of

the press

as these phases of liberty have heretofore been

conceived even by the stoutest liberatarians.

In fact, these

liberties themselves depend upon an untrammeled judiciary

whose passions are not even unconsciously aroused and whose

minds are not distorted by extra-judicial considerations.

Of course freedom of speech and of the press are essential

to the enlightenment of a free people and in restraining those

who wield power. Particularly should this freedom be

emp­

loyed in comment upon the work of courts, who ate without

many influences ordinarily making for humor and humility,

twin antidotes to the corrosion of power. But the

Dill

cf

Rights is not self-destructive. Freedom of expression con

hardly carry implications that nullify the guarantees of impar­

tial trials. And since courts. are the ultimate resorts for vin­

dicating the Bill of Rights, a state may surely authorize ap­

propriate historic means to assure that the process for soch

vindication be not wrenched from its rational tracks into

the more primitive melee of passion and pressure. The

need

is great that courts be criticized, but just as great that

they

be allowed to do their

duty."

The representative thinking on the subject is neatly summed up

by John R. Brown, Chief Judge :

"Thus does Alexander again confront the Gordhn

Knot. For our history demands that breaches of the un­

qualified commands of the First Amendment cannot be

tolerated and freedom of the press musf be given the broad-

est scope that a liberty-loving people can allow ...... On

the other hand, our fundamental concepts of absolut~ fair­

ness

in trials dictate that the environment within which jus­

tice

is administered must be maintained unpolluted by

~be

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IN RE : s. MULGAOKAR (Krishna Iyer, /.) 18 7

potential infamous notoriety and biased predilections which

a compietely unfettered but omnipresent press can irrevo-

cably engender in an age of the mass media ........ "

It is apparent from this long discussion that the future of Free

Press and of Fair Justice desiderates a juristic socio-political

national debate, not cx-cathedra admonitions from the Bench

or assertions from the Bar.

We must evolve a know-how for

the co-existence of free speech and free justice in tune with the

Pream­

ble and Article 19. Scurrilous attacks on judges or on parties to

pending cases foul the course ot justice. Mischievous half-truths,

brazen untruths and virulent publicity by partisan media, political

organs and spokesmen for vested interests can be traumatic

to the

cause of social justice.

In an area of competing social values absolutist approaches are

sure to err. And yet benign neglect of courts to

arreSt injurious

publicity may be misread

as importencc and timely affirmative action

may stem the rot.

Sheppard(') is an American case in point

Remember, a 'free' press

is often a monopoly press and has been

made gargantuan by modern technology.

Of course, we must also

remember, courts work

in public and publishing their proceedings

fairly cannot

be taboo.

Please remember, further, that those who

cry 'wolf' against Contempt Power are more often the Propriefariat,

not the Proletariat, with exceptions which prove the rule.

Preju<licibl publicity, indulged in by a 'free' press owing no

institutional responsibility or public accountability, cannot

be all that

good, especially when judges are personally vilified, assured that the

'robes' traditionally, and for good reasons, do not and should not

wrestle with caluminating columnists or

yellow journalists. Likewise,

a litigant or judge, run down by powerful vested interests wearing the

mask of mass media owned by them or hiring the pen of arch spokes­

men of

political or economic reactionaries, cannot run riot, raising

the alarm that free speech is in peril and get away with it. Heroism

on the face may often

be villainy at heart and the law cannot retreat

from its justice-function scared by slogans. Balancing of values

is difficult, delicate but indispensable. Neither the

Press nor the

courts are

above. the

People. Otherwise, even gutter talk or, to

borrio'w the phraseology of justice Stevens in Nebraska("), shabby,

intrusive· or persersely motivated media practices, may he dignified

as free press and given protective constitutional status, leaving the

citizen litigant demoralised and citizen judge powerless, panicked by

the ballyhoo of Press restraint.

The Court

is not

an inert abstraction; it is people in judicial

power. And when drawing up standards for Press freedom and

restraint,

as an 'interface' wilh an unafraid court, we must not forget

that in our constitutional scheme the most fundamental of all free­

doms

is the free quest for justice by the small man. 'When

beggar~

(l) Sheppard v. Mawe// [1966] 384, U.S., 333.

j2) Nebraska Press Association v. Stuarts [l976J 96 Sup. Ct. 2791.

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SUPREME COURT REPORTS [I978] 3 S.C.R.

die, there are comets seen' and 'when the bull elephants fight, the

grass

is trampled'. The contempt sanction, once frozen by the high

and mighty press' campaign, the sufferer,

in the long run, is the small

Indian who seeks social transformation through a fearless judicial

process. Social justice

is at stake if foul press unlimited were to

reign. As Justice Frankfurter stated, may

be 'judges as persons, or

courts

as institutions, are entitled to no greater immunity from criti­

cism than other persons or institutions'

(a question I desist from

deciding here), but when comment darkens into

~oercive imputation

or calculated falsehood, threats to impartial adjudication subtly

creeps. Not because judges lack firmness nor that the dignity of

the bench

dem_ands enhanced respect by enforced silence, as Justice

Black observed in the Los Angeles Times(') case but because the

course of justice may be distorted

by hostile attribution. Said Justice

Jackson in

Craige

v. Harney(2) :

"I do not know whether it is the view of the Court that

a judge must be thickskinned or just thickheaded, but

nothing

in my experience or observation confirms the idea

that he

is insensitive to publicity. Who does not prefer

good to

ill report of his work ? And if fame-a good

public

name-is, as Milton said, the

"last infirmity of noble

mind," it. is frequently ·the first infirmity of a medicore

one."

I do not dogmatise but indicate the perils. Of course, the evil must

be substantive and substantial, not chimerical or peripheral.

A concluding note. I have launched on

this long, inconclusive

essay

in contempt jurisprudence bearing on scandalizing the judges

qu" judges, aware that not high falstaffllln rhetoric but hard-headed

realism, illumined by constitutional values, must set the limit and

interpret the statute.

It is a disturbing devefopment in our country

that the media and some men

in the trade of traducement are escala­

tingly scandalizing judges with flippant or motivated write-ups wear­

ing a

pro bona publico veil and mood of provocative mock-challenge,

The court shall not meditate nor hesitate but shall do stern justice

to such 'professional' contemners, not shrink because they are

scurrilous, influential or incorrigible. Even so, to be gentle is, to

be just and the quality of mercy

is not strained. So, it is that a

benign neglect not judicial genuflexion,

is often the prescription,

and to inhiPit haphazardness or injustice it is necessary that the ~ar

and the Press evolve a dignified consensus on the canons of ethics

in this area, with due regard to the Constitution and the laws, so

that the Bench may give it a close look and draw the objective line

of action. The process of arriving at these norms by those mighty

forces

who influence public opinion, cannot be

delayed and until

then the law laid down in precedents of .this court

will go in.to

a~tion

when judge-baiting is indulged in. by m~sked .men or media mt~!.

Freedom is what Freedom does and Justil;e fails when Judges quail.

(I) 314 U.S. 263,

(2) 331 us. 367.

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IN RE : s. MULGAOKAR (Kailasam, /.) 189

For sure, my plea is not for judicial pachydermy, but for dignified A

detachment

which ignores ill-informed criticism in its tolerant stride,

but strikes when offensive excesses are established. Frankly, all

these

are hypothetical and have no specific reference to the present

case. These

obiter-dicta are intended to indicate the pros and cons,

not to pontificate on the precise limits for exercise of contempt

power and

to emphasize what Chief Justice Warren Burger mentioned

in Nebraska

Press Association(!) as 'something in the nature of a B

fiduciary duty' of

the press to

act responsibly and I may add,

respectfully.

An afterword.

An afterword has become necessitous because the learned Chief

Justice has, in his reasons, made some critical observations on men

and matters based on his rich experience,

.high responsibility and C

urge to right wrongs. While respecting his feeling

of hurt ahd

attempt to set the record straight regarding his prior judgment and

letters on canons of judicial ethics, I desist from comments on the

author or the article, including its correctness and propriety,

for

fear that an indelible word, writ incautiously, may fester into an

incurable wound. I

am in no mood to pronounce on these subjects

or to judge these generalities. Many an arrow at random sent hits D

a mark the archer never meant, and

ex cathedra generalisations run

the genetic risk of noetic imperfections

.. The Almighty does not

share His omniscience with the Judiciary.

KAILASAM, J.-I had the benefit of reading the Judgments pro­

posed to

be delivered by My

Lord the Chief Justice and Justice

Krishna Iyer.

I would have been contented

with stating that, in my view, on

taking into account the facts and circumstances of

the case this is

.not a fit case to be proceeded with under the Contempt of Courts

Act, 1971. But now

it has become necessary for me to state whether

I agree

with the judgments to be delivered.

My learned Brother Justice Krishna Iyer in his concluding note

has expressed that he had launched on this long inconclusive essay

which relates

to hypothetical questions and has no specific reference

to the present case. The Judgment which he himself characterises

as

obiter dicta may be left alone without any comments.

When the matter

was taken up in the Court on 27th January,

1978, the contempt proceedings were dropped without calling upon

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F

the learned counsel

who was appearing for the respondent in response G

to the notice. Without hearing the parties concerned, it

is not right

and proper

to make any comments about the facts of the case. In

this view I refrain from referring to the publication in

"The Indian

Express" or about the article in the newspaper by Shri A G.

Noorani.

Contempt proceedings

will stand dropped.

H

P.B.R. Proceedings dropped.

(l) 96 S. Ct. 2803.