# H. BEG, C.J v. R. KRISHNA IYER AND P. S. KAILASAM, JJ.J

- **Citation:** [1978] 3 S.C.R. 162
- **Court:** Supreme Court of India
- **Decided:** 1978-02-21
- **Bench:** M. H. Beg, V. R. Krishna Iyer, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-beg-c-j-v-r-krishna-iyer-and-p-s-kailasam-jj-j-7465
- **Pages:** 28

## Headnote

•
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Conte111p1 of Court-Newspaper article criticising the judges of Supreme
Court-If contempt-Tests for determining contempt of Court.
c
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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 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 opprobrious attacks by either malicious 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

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162
A
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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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 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 opprobrious attacks by either malicious 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 everybody 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' process 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 expressed 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 critiB
,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 preC
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 Justices 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 Registrar of this Court.
No question of disowning the supposed code by
any Judge could, in the circumstances, arise.
And, I had never "disowned" 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 untrue, 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 contempts.
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 Constitution, 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 Parliament 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 cannot 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 misguid('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 scientifically 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 without 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-supremacy 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· judi6ary, 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 formulated 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 purported law would offend against article 19(1) (a) of the Constitution.
Nei_ther our Constitution nor our law, could conceivably be. infringed 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 Constitutional 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 formulate 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 extremely small and limited), the Committee could itself forward its
findings for appropriate action under Article 124 of the Constitution, to the Central Government which could then set up a Committee of Inquiry.
In this way, in serious cases, the Judge concerned 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". Questions, naturally, must arise in the public mind : To what do they become "pliant" ? Is it to the dictates or directions of the Executive ?
When and how have they done so? Had such insinuations any factual
·).
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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 judgment upon such views without giving notice to other parties, and without 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 issued 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 attention 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 judicial ethics or propriety for judges of even this august Court.
The statement made above by me should remove the misapprehension, if there was really any in the mind of whoever wrote the article
in the Indian Express of 13th December, 1977, condemning my proposals 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 directions 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 essential 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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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 judiB
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
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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 unjustified abuses are hurled at one's self personally, but, when the question 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 deserving consideration of all serious minded people who are interested in
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seeing that democracy does not flounder or fail in our country. If fearless and impartial courts of justice are the bulwark of a healthy democracy, 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
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that although the possible constructions on what was written there
have been indicated above.
JI
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 soundness 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, without 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 proceedings should be dropped.
Nevertheless, I think that we are completely 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 judgments 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 praciice 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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profoundly appre~iate and deeply respect his sense of hurt and obligation 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 contemplatio"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 innocence 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 terminological i"nexactitude throw into palpitating tantrums the balanced cerebration 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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sage silence, the shafts. of acid speech; and, how alluring it is to
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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
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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 contempt clutches of the court.
The Court's jurisdiction to initiate proceedings and punish for constructive contempt suo motu crystallized
l'1 the eighteenth century ev·~n though it is clear that the Court's inherent 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
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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.
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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 validated 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 proving 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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armoured. by a regal privilege but because 'be you-the contemnerever.