Criminal Contempt of High Court-Discharge can be asked if the rules are defective ab initio
V. R. Krishna Ayer, J. in the case of IN RE S. MULGAOKAR reported in AIR 1978 SC 727:
“The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized 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 a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.
The second principle must be to harmonies the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding 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 law over pugnacious, vicious, unrepentant and malignant condemners, be they the 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 armored by a regal privilege but because ‘be you – the condemner – ever so high, the law – the People’s expression of Justice – is above you. Curial courage overpowers arrogant might even as judicial benignity forgives errant or exaggerated critics. Indeed, to criticise the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. For, it blesseth him that gives and him that takes. Where freedom of expression, fairly exercised, subserves public interest in reasonable measure, public justice cannot gag it or manacle it, constitutionally speaking. A free people are the ultimate guarantors of fearless justice. Such is the cornerstone of our Constitution; such is the touchstone of our Contempt power, oriented on the confluence of free speech and fair justice which is the scriptural essence of our 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 representations, or otherwise) of any matter or the doing of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court.”
This is an extremely wide definition. But, it cannot be read apart from the conspectus of the constitutional provisions within which the Founding Fathers of the Constitution intended all past and future statutes to have meaning. All laws relating to contempt of court had, according to the provisions of Art. 19 (2), to be “reasonable restrictions” on the exercise of the right of free speech. The courts were given the power – and, indeed the responsibility – to harmonize conflicting aims, interests and values. This is in sharp contrast to the Phillimore Committee report on Contempt of Court in the United Kingdom (1974) bund. 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 protection of a libelled judge and prevention of obstruction of public justice and the community’s confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound.
Because the law of contempt exists to protect public confidence in the administration of justice, the offence will not be committed by attacks upon the personal 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, unconnected with the office he holds, is dealt with under the ordinary rules of slander and libel.” (See ‘Newspapers and Contempt of Court’ (1935) 48, Harv LR 885, 898). Similarly, Griffith, C. J. has said in the Australian case of Nicholls ((1911) 12 CLR 280, 285) that:
“In one sense, no doubt, every defamatory publication concerning a judge may be said to bring him into contempt as that term is used 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 the matter of a Special Reference from the Bahama Islands ((1893) AC 138) the Privy Council advised that a contempt had not been committed through a publication in the Nassau Guardian concerning the resident Chief Justice, who had himself previously criticised local sanitary conditions. Though couched in highly sarcastic terms the publication did not refer 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 indispensable 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 when the focus of its critical attention is the court, including the highest Court.
The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing condescending indifference and repudiation by judicial rectitude.
The sixth consideration is that, after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.”
The Supreme Court in the case of Bal Thackrey vs. Harish Pimpalkhute and another (below), had the occasion to deal with such a question and while answering the question in favour of the contemner, the court made the following observations:
“21. A perusal of record including the notices issued to the appellant shows that the Court had not taken suo motu action against the appellant. In contempt petitions, there was no prayer for taking suo motu action for contempt against the appellant. The specific objection taken that though suo motu action could be taken under Section 15 of the Act on any information or newspaper but not on the basis of those contempt petitions which were filed in regular manner by private parties, was rejected by the High Court observing that being Court of Record it can evolve its own procedure, which means that the procedure should provide just and fair opportunity to the contemner to defend effectively and that the contemner has not expressed any prejudice or canvassed any grievance that he could not understand the charge involved in the proceeding which he had been called upon to defend. It is, however, not in dispute that the charge against the appellant was not framed.
22. In these matters, the question is not about compliance or non- compliance of the principles of natural justice by granting adequate opportunity to the appellant but is about compliance of the mandatory requirements of Section 15 of the Act. As already noticed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitions filed were under Section 15 of the Act. From the material on record, it is not possible to accept the contention of the respondents that the Court had taken suo motu action. Of course, the Court had the power and jurisdiction to initiate contempt proceedings suo motu and for that purpose consent of the Advocate-General was not necessary. At the same time, it is also to be borne in mind that the Courts normally take suo motu action in rare cases. In the present case, it is evident that the proceedings before the High Court were initiated by the respondents by filing contempt petitions under Section 15. The petitions were vigorously pursued and strenuously argued as private petitions. The same were never treated as suo motu petitions. In absence of compliance of mandatory requirement of Section 15, the petitions were not maintainable.”
Contempt Rules framed by Calcutta High Court dealing with the Suo Motu Rules in terms of Section 15 of the Act.
For the purpose of dealing with the points involved herein, the following provisions of the Rules are relevant and those are quoted below:
Rules 2(2), 20, 29, 31, Form 1 and Form 2 of Appendix I 2 (2). Proceedings in connection with a criminal contempt may be initiated-
(a) on a motion of the High Court in respect of a contempt committed upon its own view under section 14 of the Act; or
(b) on its own motion by the High Court under section 15(1) of the Act; or
(c) on a motion founded on a petition presented by the Advocate-General under section 15(a) of the Act; or
(d) on a motion founded on a petition presented by any other person with the consent in writing of the Advocate-General under section 15(1) (b) of the Act; or
(e) on a reference made to the High Court by the subordinate courts under section 15(2) of the Act, containing the following particulars-
(a) a brief statement of the case;
(b) the particulars of the contumacious acts;
(c) name, address and particulars of the respondents along with the copies of the papers relating to contumacious acts.
20. Where a rule is issued by the Court on its own motion or on a motion made by the Advocate- General under section 15, the rule nisi shall be drawn up, as far as may be, in the model Form No. 2, Appendix I.
29. The respondent or the contemner may file an affidavit showing cause and the petitioner may file a reply thereto within such time as may be directed by the Court. The Court may, however, in a contempt proceeding take such evidence as may be considered necessary.
31. Excepting the cases where rules have been issued by the Court on its own motion, no affidavit shall be allowed to be filed unless the same be accompanied by a receipt showing service of a copy thereof on the Advocate or Attorney appearing for the other side.
APPENDIX I FORMS OF RULE NISI
Upon reading a petition of ……………………..and his/their affidavit of verification thereof, dated …………………………………….and the exhibits or annexures to the said petition and upon hearing ……………………………….., Advocate for the said petitioner(s).
It is ordered that a rule do issue calling upon the respondent/ respondents to show cause why he/they should not be committed to prison or otherwise penalised or dealt with for having.
(set out the nature of contumacious conduct).
And it is further ordered that pending the disposal of this rule the respondent/respondents are restrained from (State particulars).
The rule is made returnable On the returnable date, it is ordered, the respondent/respondents shall appear personally before this Court at ……………………….a.m./ p.m. and shall not leave the Court without permission.
Come to the notice of ………………
Whereas it has been brought to the notice/been reported to of this Court by/by an affidavit filed by the Advocate-General, Registrar Appellate/Original Side of this Court that the respondent/respondents has/have………………..
(Set out the nature of contumacious conduct).
It is ordered that a Rule do issue calling upon the respondent(s) to show cause why he/they should not be committed to prison or otherwise penalised or dealt with for the acts or conduct stated above.
The Rule is made returnable on ………………………………..
The contemner shall be personally present in Court at………….. on the returnable date and shall not leave the Court without permission.”
On the plain reading of those Rules, it appears that whereas a criminal contempt proceeding is initiated on “a motion founded on a petition” as provided in Rule 2(2) (c) and 2(2) (d), in case of Suo Motu action by Court as provided in Rule 2(2) (a) or Rule 2(2) (b), the phrase “on a petition” is conspicuously absent.
Similarly, in case of reference by the subordinate Courts, instead of any petition, a brief statement of fact made by such Court with the particulars of the contumacious acts and the names and address etc. of the respondents are required to be filed. In other words, the Rules do not provide for any regular petition by any person for drawing the attention of the Court for issuing a Suo Motu Rule of contempt and at the same time, there was no question of registering such petition with serial number which is provided for filing regular petition for contempt at the instance of a party. In the cases before us, all these Rules were issued based on the petitions filed by the parties and those were registered as regular contempt application as provided in the Rules for ordinary contempt application.
Rule 20 specifically provides that where a Rule is issued by the Court on its own motion or on a motion made by the Advocate General under Section 15 of the Act, the Rule Nisi should be drawn up, as far as may be in the model Form No.2 prescribed in Appendix I.
The Form No.2 does not refer to any petition. The opening sentence of the Form No.2 is “whereas it has been brought to the notice/been reported to this Court by/by an affidavit filed by the Advocate-General, Registrar Appellate/Original Side of this Court that the respondent/respondents has/have……….”.
Therefore, in a Suo Motu Rule of contempt there is no scope of referring to any petition unlike Form No.1. The Rules we are dealing with are drawn up in form meant for the Rules based on petition. The specific particulars of the contumacious acts have also not been indicated in the Rules and even the names of the media where the statements were published have not been mentioned. Even by the order dated August 5, 2008, a Division Bench of while issuing the Suo Motu Rule directed the Respondents to give affidavit-in-opposition to the “Contempt application”.
Rule 29 speaks of the right of the contemner to give affidavit showing cause and the petitioner has been given right of reply to the affidavit by the contemner and Rule 31 further makes it mandatory to serve the copy of the affidavits on the other side by taking a receipt from the lawyer of the other side excepting the cases where the Rules have been issued by the court of its own motion. The conjoined effect of those two Rules is that in case of Suo Motu Rules, there is no right of reply and as such, there is no necessity of serving the copy of the affidavit by the contemner upon the petitioner. In the cases before us, the Division Bench issuing the Rules has not only granted the right to file affidavit-in-reply to the petitioners to the affidavit of show-cause by the contemner but also has extended the time of filing such affidavit-in-reply on the specific prayer of the learned Advocates of the petitioners and the petitioners have availed of such benefit by actually filing the affidavit-in-reply.
The Apex Court in the case of Pallav Seth vs. Custodian reported in AIR 2001 SC 2763 are appropriate:
“Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Court’s own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice. In other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.”
Discharge can be asked if the rules are defective ab initio.
1. E.M. Sankaran Namboodripad vs. T. Narayanan Nambiar reported in 1970(2) SCC 325;
2. In Re S. Mulgaokar reported in (1978) 3 SCC 339;
3. Dr. D.C. Saxena vs. Hon’ble the Chief Justice of India reported in (1996) 5 SCC 216;
4. Bal Thackrey vs. Harish Pimpalkhute and Ors. reported in (2005) 1 SCC 254;
5. Contempt of Court : The need for a Fresh Look by : Justice Markandey Katju, Judge, Supreme Court of India reported in 2007 AIR Jour/3 page 33;
6. In Re Arundhati Roy reported in (2002) 3 SCC 343;
7. State of J and K vs. Mohd. Yaqoob Khan & Ors. reported in (1992) 4 SCC 167;
8. J.R. Parashar, Advocate & Ors. vs. Prasant Bhushan, Advocate & Ors.
reported in (2001) 6 SCC 735;
9. Advocate General of Tamil Nadu, Chennai vs. Shri M. Karunanidhi, Founder and Editor, Murasoli Chennai reported in (2002)2 MLJ 821;
10. All India Anna Dravida Munnetra Kazhagam vs. L.K. Tripathi & Ors.
reported in (2009)5 SCC 417;
11. P.N. Duda vs. P. Shiv Shanker & Ors. reported in (1988) 3 SCC 167;
12. S.A. Khan vs. Ch. Bhajan Lal & Ors. reported in (1993) 3 Supreme Court Cases 151.
13. In re: P.C. Sen, reported in AIR 1970 Supreme Court 1821 (V 57 C 388).
14. Common Cause (A Regd. Society) vs. Union of India & Ors. reported in (2008) 5 Supreme Court Cases 511.
15. State of U.P. & Ors. vs. Jeet S. Bisht & Anr. reported in (2007) 6 Supreme Court Cases 586.
16. Regina vs. Commissioner of Police of the Metropolis, reported in Q.B (1968)
17. E.V. Ramaswami, Leader, Dravida Kazhagam vs. Jawaharlal Nehru, reported in AIR 1958 Madras 558 (V 45 C 196).
18. Debi Prasaid Sharma & Ors. vs. Emperor reported in AIR (30) 1943 Privy Council 202.
19. Ambard vs. Attorney-General for Trinidad & Tobago. reported in (1936) Privy Council 322.
20. Ananta Lal Singh & Ors. vs. Alfred Henry Watson & Ors. reported in AIR 1931 Calcutta 257.
21. In the matter of a Special Reference from the Bahama Islands, reported in (1893) Privy Council 138.
22. Kallol Guha Thakurata & Anr. vs. Biman Basu, Chairman, Left Front, West Bengal & Ors. reported in 2005(2) CHN 330.
23. Association for Protection of Democratic Rights vs. State of West Bengal & Ors. reported in 2007(4) CHN 842.
24. Brahma Prakash Sharma & Ors. vs. The State of Uttar Pradesh reported in AIR 1954 S.C. 10 (Vol. 41, C.N. 5).