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PETITIONER: BARADAKANTA MISHRA

       Vs.

RESPONDENT: THE REGISTRAR OF ORISSA HIGH COURT & ANR.

DATE OF JUDGMENT19/11/1973

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. RAY, A.N. (CJ) CHANDRACHUD, Y.V. BHAGWATI, P.N. KRISHNAIYER, V.R.

CITATION:  1974 AIR  710            1974 SCR  (2) 282  1974 SCC  (1) 374  CITATOR INFO :  R          1976 SC 727  (46)  R          1976 SC 921  (11)  RF         1976 SC1899  (14)  RF         1988 SC1208  (17)  RF         1992 SC 165  (55)  RF         1992 SC 904  (9)

ACT: Contempt of Courts Act 1971 (17 of 1971)-Ss. 2(c)(iii) & 13- Scope   of  Contempt  of  Court-Disciplinary  control   over Subordinate   judiciary-When  High  Court  functions  in   a disciplinary capacity it does so in furtherance of  adminis- tration   of  justice. What  amounts  to-Attack   on   the administrative  act  of  a judge, if  amounts  to  contempt- Administration of justice meaning and scope of.

HEADNOTE: The  appellant,  a  judicial  officer,  was  convicted   and sentenced under the Contempt of Courts Act, 1971, by a  Full Bench  of  the Orissa High Court. Registrar of  Orissa  High Court  v.  Bardakanta Mishra & Ors.  I.L.R.  [1973]  Cuttack 134. The  appellant’s career as a judicial officer was  far  from satisfactory.   When he was working as  Additional  District and   Sessions  Judge  he  showed  gross  indiscretion   and committed grave judicial misdemeanor.  The contempt proceed- ings arose out of the representation he made to the Governor for canceling the order of suspension passed against him  by the High Court and the allegation he made in a memorandum of appeal  he had filed earlier in the Supreme Court.   In  his representation  to  the Governor the  appellant  made  false insinuations  that  the  Governor  cancelled  the   previous disciplinary proceedings against him on the ground that  the same was vitiated as the High Court prejudged the matter and the government set aside the punishment because three of the judges were biased and were prejudiced against him, that the proceeding  involved  the Government in  heavy  expenses  on account of the "palpably incorrect views of the High Court", that   the  High  Court  did  not  gracefully   accept   the

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Government’s  order cancelling his demotion, that  the  High Court  resorted  to  "subterfuge’  to  counteract  the  said decision  of the government by taking a novel step and  that the High Court’s action suffered from patent mala fides.  He stated that the other judges had no independent judgment  of their own and were influenced by the Chief Justice to take a view  different  from  what  they  bad  already  taken   and characterised  the High Court as an "engine  of  oppression" and  his  order of suspension as "mysterious".   In  another representation  made to the Governor the  appellant  alleged that the High Court on the administrative side was seriously prejudiced  and  biased against him and it acted as  if  the charges  stood established requiring extreme punishment  and as  such  justice May not be meted out to him  by  the  High Court,  if it conducted the departmental inquiry.   He  also stated that he considered it risky to submit his explanation to  the  High  Court and that the High  Court  in  the  best interests of justice, should not inquire into these  charges again st  him.   He suggested that "the Court was not  in  a position to weigh the evidence and consider the materials on record   and  impose  a  sentence  commensurate   with   his delinquency." The action taken by the High Court was branded as "unusual".  A copy of this representation was sent to the High  Court  with the remark that since the High  Court  was likely  to  withhold  the representation  it  was  submitted direct to the Governor.  In the memo of appeal filed in  the Supreme  Court,  the appellant alleged  bias  and  prejudice against  the High Court and its Chief Justice.  He took  the plea  that  the High Court had become disqualified  to  deal with the case and expressed the view that "the judges of the High  Court had fallen from the path of rectitude  and  were vindictive"  and had decided to impose substantive  sentence and  that "they were not in a position to  mete  even-handed justice’. In  appeal  to this Court. it was contended : (i)  that  the passages  about which the complaint was made did not  amount to contempt of court since they did not purport to criticize any  ’judicial,  acts  of the judges and  criticism  of  the administrative  acts of the High Court even in  vilification terms did not amount 28 3 to  contempt of court, and (ii) that the acts complained  of were   in  the  court  of  the  appellant  challenging   his suspension  and holding of disciplinary proceedings,  in  an appeal or representation to the Governor from the orders  of the  High Court and he gave expression to his  grievance  or had  otherwise acted not with a view to malign the court  or in defiance of it but with, the sole object of obtaining the reversal of the orders passed by the High Court against him. HELD : The imputations have grossly vilified the High  Court tending  to affect substantially administration  of  justice and,  therefore, the appellant was rightly convicted of  the offence of criminal contempt. [304F] (i)Proceedings  in contempt are always with  reference  to administration of justice.  All the three sub-clauses of  s. 2(c) of the Contempt of Courts Act, 1971, define contempt in terms of obstruction or interference with administration  of justice and scandalisation within the meaning of  sub-clause (1)  must  be  in respect of the court  or  the  Judge  with reference to administration of justice. [297C-D] Debi  Prasad Sharma v. The King-Emperor. 70 Indian  Appeals. 216, referred to. (a)The question whether contemptuous imputations made with reference  to  the  administrative acts of  the  High  Court amount  to  contempt of court will depend upon  whether  the

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amputations  affect the administration of justice.  This  is the basis on which the contempt is punished and must  afford the necessary test. [298E] (b)The mere functions of adjudication between the  parties is not the Whole of administration of justice for any court. The  presiding  judge  of a Court embodies  in  himself  the Court. and when engaged in the task of administering justice is  assisted  by  a complement  of  clerks  and  ministerial officers.   The Acts in which they are engaged are  acts  in aid of administration of justice.  Therefore, when the Chief Justice   appoints   ministerial   officers   and    assumes disciplinary  control  over them, that is a  function  which through described as administrative, is really in the course of  administration of justice.  Judical integrated  function of  Judge  and cannot suffer any dissection nuance  of  high standards    of   rectitude   in   judical    administration administration is an so far as maintain concerned. The whole set  up of a court is for who’ purpose of administration  of justice and the controlwhich the judge exercises over  his assistants has also the object of maintaining the purity  of administration of justice. [298F-H; 299A] (c)The  disciplinary  control over the misdemeanors  of  the subordinate judiciary in their judicial administration is  a function which the High Court must exercise in the  interest of  administration  of justice.  It is a function  Which  is essential  for  the administration of justice  in  the  wide connotation  it has received and, therefore, when  the  High Court functions in a disciplinary capacity, it Only does  so in  furtherance  of  administration of  justice.  it  is  as important  for the superior court to be vigilant  about  the conduct and behaviour of the subordinately judge as it is to administer  the  law, because both functions  are  essential administration of justice.  The Judge of the superior  court in  whom  this disciplinary control is vested  functions  as much  as  a  Judge in such, matters as  when  he  bears  and disposes of cases before him. [300E; 299D] (d) What is commonly described as an administrative function has been when vested in the High Court, constantly  regarded by statutes as a function in the administration of  justice. [299F-G] Letters  Patent for the High Courts of Bombay, Calcutta  and Madras a. 8; High Courts Act, 1861, a. 9; the Government  of India  Act, 1935, %. 223. 224; Constitution of India,  1950, Arts.  225, 227 235;  State of West Bengal V.Nripendra  Nath Bagchi [1966] 1 S.C.R. 771 referred to. (e)Thus  the courts of justice in a State froth the  highest to  the  lowest  are by their  constitution  entrusted  with functions  directly  connected with  the  administration  of justice  and  it is the expectation and  confidence  of  all those  who have or likely to ’have business there  that  the courts Perform all their functions 284 on  a  high  level  of rectitude  without  fear  or  favour, affection   or  ill-will.   And,  it  in  this   traditional confidence  in the courts that justice will be  administered in  them which is Fought to be protected by  proceedings  in contempt. [300F-G] Rex v. Almon [1765] Wilmot’s Notes of Opinions 243, referred to. (f) Scandalisation of the court is a species of contempt and may  take several forms.  A common form is the  vilification of  the Judge.  When proceedings in contempt are  taken  for such vilification the question which the court has to ask is whether the vilification is of the Judge as a Judge or it is the  vilification  of the Judge as an  individual.   If  the

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latter, the Judge is left to this private remedies and  the court  has no power to commit for contempt.  If the  former, the  court  will proceed to exercise the  jurisdiction  with scrupulous  care  in  cases  which  are  clear  and   beyond reasonable  doubt.   Secondly, the court with have  also  to consider   the   degree  of  harm   caused.   as   affecting administration  of justice and if it is slight  and  beneath notice, courts will not punish for contempt.  Ibis  salutary practice is adopted by s. 13 of the Contempt of Courts  Act, 1971.   If  the attack on the Judge functioning as  a  Judge substantially affects administration of justice it becomes a public mischief punishable for contempt, and it matters  not whether  such an attack is based on what a Judge is  alleged to  have  done  in  the  exercise  of  his  ’administrative’ responsibilities.  A Judge’s functions may be divisible, but his integrity and authority are not divisible in the context of administration of justice. [301D-F] Queen  v.  Gray, [1900] (2) Queen’s Bench, 36, at  page  40, referred to. (g)"Judicial  capacity"  is an ambivalent term  which  means "capacity of or properto  a  Judge"  and  is  capable  of taking   in   all  functional  capacities   of   a   Jurodge whetheradministrative, adjudicatory or any other,  necessary for the administration of justice.  There is no warrant  for the  narrow view that the offence of scandalisation  of  the court takes place only when the imputation has reference  to the  adjudicatory  functions  of  a Judge  in  the  seat  of justice. [302D] Rex v. Almon [1765] Wilmot’s Notes of Opinion 243; MOti  Lal Ghose and Others, XLV-Calcutta, 169, The State of Bombay  v. Mr.  P. A.I.R. 1959 Bombay, 182, Debi Prasad Sharma  v.  The King  Emperor,  70, Indian Appeals, 216,  Special  Reference from  the  Bahama Islands, A.C. 138 at 144,  Queen  v.  Gray [1900] 2 Q.B. 36, referred to. Brahma  Prak-ash  Sharma and others v. The  State  of  Uttar Pradesh,  [1953]  S.C.R.-  1169,  Gobind  Ram  v.  State  of Maharashtra.  [1971] 1 S.C.C. 740 and State v. The  Editors and Publishers of Eastern Times and Prajatantra, A.I.R. 1952 Orissa, 318, held inapplicable. (ii)If  in  fact the language used amounts to  contempt  of court  it will become punishable as criminal contempt.   The right  of appeal does not give the right to commit  contempt of  court nor can it be used as a cover to bring the  autho- rity of the High Court into disrespect and disregard. [298C- D] Jugal  Kishore v. Sitamarhi Central Co.op. Bank.   AIR  1967 S.C. 1494 referred to. Per  Bhagwati & Krishna Iyer, JJ : (Concurring  in  ultimate decision)  :  The  dilemma of the  law  of  contempt  arises because of the constitutional need to balance, two great but occasionally  conflicting principles-freedom  of  expression and f air and fearless justice.  It is a moot point  whether we  should  still be bound to the regal moorings of  Rex  v. Almon. [306E] (i)The  emphasis  in Ss. 2(c), 3 and 13 of the  Contempt  of Courts  Act,  1971. to the interference with the  course  of justice  or obstruction of the administration of Justice  or scandalising or lowering the authority of the Court-not  the Judge-highlights   the   judicial  area   as   entitled   to inviolability  and  suggests  a  functional  rather  than  a personal  or ’institutional’ immunity.  The unique power  to punish for contempt of itself inheres in a Court qua  court, In  its essential role of dispenser of public justice.   The phraseological image projected 285

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by the catena of expressions in the Act, the very conspectus of the statutory provisions and the ethos and raison  d’eire of the jurisdiction-point to the conclusion that the text of the  Act must take its colour from the general  context  and confine the contempt power to the judicial-cum-para-judicial areas,  including  such  administrative  functions  as   are intimately  associated with the exercise of judicial  power. In  short the accent is on the functional personality  which is  pivotal  to  securing justice  to  the  people.   Purely administrative   acts  like  recruitmerits,  transfers   and postings,  routine disciplinary action  against  subordinate staff,  executive  acts  in running  the  establishment  and ministerial  business ancillary to office-keeping-these  are common  to all departments in the public sector  and  merely because  they  relate  to the judicial  wing  of  government cannot   enjoy  a  higher  immunity  from  criticism.    The quintessence  of  the contempt power is  protection  of  the public,  not  judicial personnel.  If the  slant  on  judict poalisation  as  a  functional limitation  on  the  contempt jurisdiction  is  accepted, it must exclude from  its  ambit interference  with purely administrative acts of courts  and non-judicial  functions  of  judges.   This  dichotomy is implicit  in the decided cases. To treat as the  High  Court has  done.  "the image and personality of the lush Court  as an  integrated  one"  and to hold  that  every  shadow  that darkens  it  is  contempt  is to  forget  life,  reason  and political  progress.  The basic ’public duty" of a Judge  in his  "judicial  capacity" is to dispense public  justice  in Court  and anyone who obstructs or interferes in  this  area does  so  at  his peril.  Likewise,  personal  behaviour  of judicial   personnel,  if  criticised  severally   or   even sinisterly.  cannot  be  countered  by  the  weapon  of  the contempt of court. [309C-E, 3 10 A-F] The  paramount but restrictive jurisdiction to  protect  the public  against substantial interference with the stream  of justice cannot be polluted or diffused into an  intimidatory power  for  the  judges to strike. at  adverse  comments  on administrative, legislative (as under articles 225, 226  and 227) and extra-judicial acts.  Commonsense and principle can certainly  accept  a valid administrative  area  so  closely integrated  with court work as to be stamped  with  judicial character  such  as  constitution of  benches,  transfer  of cases,   issue   of  administrative   directions   regarding submission  of findings or disposal of cases by  subordinate courts  and the like.  Not everything covered by  art.  225, 227  and  235  will be of this texture.   Thus  even  though Judges  and  courts  have diverse  duties  functionally  and historically and jurisprudentially, the value which is  dear to  the  community  and the function which  deserves  to  be pardoned  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 countervailing  good,  not merely of free speech but also of greater faith generated by exposure to the acting light of bona fide even if marginally overzealous, criticism cannot be over-looked. [315B-E] In the instant case the suspension of the District Judge was so   woven   into  and  integrally   connected   with   the- administration  of  justice that it can be regarded  as  not purely  an administrative act but a para-judicial  function. The   appeal  was  against  the  suspension  which   was   a preliminary  to contemplated disciplinary action  which  was against the appellant in his judicial   capacity for acts of judicial  misconduct.  The control was, therefore,  judicial and  hence  the unbridled attack on the High Court  for  the

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step  was punishable impugned conduct of the  condemner  was qua Judge and the evil a supervisory act of the High  Court. [315G-H] (ii)A  large  margin  must be allowed  for  allegations  in remedial  representation;  but  extravagance  forfeits   the protection of good faith. [315H] In  the  matter  of  a Special  Reference  from  the  Bahama Islands, [1893] AC. 139; 149; Debi Prasad Sharma v. The King Emperor,   [1942]   70  I.A.  216,  Kayiath   Damodaran   v. Induchoodan,  A.I.R.  1961 Kerala 321, K. L.  Gauba’s  case, I.L.R.  [1942]  Lab. 411, 419, Rex v. B. S.  Nayyar,  A.I.R. 1950  All’. 549. 551. 555, In re S. B. Sarbadhicary,  [1906] 14  XX  I.A.  41, Brahma Prakash Sharma v.  State  of  Uttar Pradesh,  (1953) S.C.R. 1169, State V. N.  Nagamani,  A.I.R. 1959  Pat.  373  and  In the  matter  of  an.   Advocate  of Allahabad, A.T.R. 1935 All. 1, referred to. 28 6 Remedial  process  cannot  be  a mask  to  malign  a  judge. Irrelevant  or unvarnished amputations under the pretext  of grounds of appeal amount of foul play and perversion of  the legal process.  In the instant case the appellant, a  senior officer who professionally weighs his thoughts and words has no  justification for the immoderate abuse he  has  resorted to.  In this sector even truth is no defence, as in the case of  criminal  insult-in the latter because  it  May  produce violent  breaches  and is forbidden in the  name  of  public peace,  and in, the former it may demoralise  the  community about  courts  and is forbidden in the  interest  of  public justice as contempt of court.  The Court being the  guardian of the people’s rights, it has been held repeatedly that the contempt  jurisdiction should be exercised  with  scrupulous care  and only when the case is clear and beyond  reasonable doubt. [317C-E; 318H] State of Uttar Pradesh v. Shyam Sunder Lal, A.I.R. 1954 All. 308,  Rex v. R. S. Nayyar, A.I.R. 1950 All. 549; 554,  State of  Madhya  Pradesh  v. Ravi Sharker.  [1959]  S.C.R.  1367; Govind  Ram  v. State of Maharashtra, [1971] 1  S.C.C.  740, Swarnamayi  Panigrahi v. B. Nayak, A.I.R.- 1959  Orissa  89, Quintin Hogg. 1968 2 W.L.R. 1204: 1206-7.  C. K. Paphtary v. O.  P.  Gupta,  A.I.R. 1971 S.C. 1132-1141 para  ’52,  R  v. Gray,,  [1900] 2 Q.B. 36, Special ,Reference No. 1 of  1964, [1965] 1 S.C.R. 413. 501; referred to. (iii)In sum, the key note word is ’justice, not ’judge’; the ’key  note thought is unobstructed public justice,  not  the self  defence of a judge; the corner-stone of  the  contempt law  is the accommodation of two  constitutional  values-the right  of free speech and the right to independent  justice. The ignition of con, tempt action should be substantial. and mala  interference with fearless judicial action,  not  fair comment  or trivial reflections on the judicial process  and personnel. [319E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  41 and 77 of 1973. Appeals under Section 19 of the Contempt of Courts Act, 1971 from the, Judgment and Order dated the 5th February, 1973 of the  Orissa High Court at Cuttack in Criminal  Miscellaneous Case No. 8 of 1972. A.K.  Ser,  G.  L.  Mukhoty and C. S.  S.  Rao,  for  the appellant (in Cr.A. 41./73). G.   Rath,  and B. Parthasarathy, for the appellant (In  Cr. A. 77/73).

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F.   S. Nariman, Additional Solicitor General, B. M. Patnaik and  Vinoo Bhagat, for respondent No. 1 (in Cr.   A.  41/73) and respondent NO. 2 (in Or.  A. 77/73). G. Rath and U. P. Singh,for  respondent No. 2 (in  Cr.   A. 41/73), A. K. Sen and C. S. S. Rao, for respondent No. 1 (in Cr.  A. 77/73). The judgment of the Court were delivered by PALEKAR  J.-This  is  (Criminal Appeal No. 41  of  1973)  an appeal  by  one Baradakanta Mishra from his  conviction  and sentence  under the Contempt of Courts Act, 1971 by  a  Full Bench  of fiVe of the.  Orissa High Court.  The Judgment  is reported  in  I.L.R. [1913] Cuttack, 134 (Registrar  of  the Orissa High Court v. Baradakanta Mishra and Ors.). The  appellant started his career as a Munsif in 1947.   His career as a Judicial Officer was far from satisfactory.   In 1956  he was promoted on trial basis to the rank of  a  sub- Judge with the observation 28 7 that if he was found incompetent, suitable action would  be, taken.   In due course, he, was confirmed as  a  Subordinate Judge.   On April, 2, 1962 he was promoted, again  on  trial basis,  to  the  rank  of  Additional  District   Magistrate (Judicial)  which  is  a post in the  cadre  of  the  orissa Superior Judicial Service (Junior Branch).  As his work  was for unsatisfactory, he wag reverted to his substantive  post of  a  Subordinate Judge on January 4, 1963.  The  order  of reversion was challenged by him in a Writ Petition which was dismissible by a Bench of C.J. and , J. The case is reported in [I.L.R.] 1966, Cutback, 503. An appeal to the  Supreme Court was dismissed on February 6,he 1967.  While working as a Subordinate Judge, after reversion,- ’ was suspended  from service  from 15th May, 1964 to 9th April, 1967  during  the pendency  of  a disciplinary proceeding  against  him.  that proceeding  ended  in  a light punishment  of  two  of-  his increments   being  stopped.   From  the.  above  order   of punishment,  the appellant filed on 10-10-1967 an appeal  to the  State  Government.  The State Government by  its  order dated  15-7-1970 allowed tie appeal on the ground  that  the Public Service Commission had not heed consulted by the High Court   before  imposing  the  punishment,  and   that   the Charge--Sheet  served on the appellant having indicated  the proposed  punishment vitiated the disciplinary  proceedings. After the case, Was sent back to the High Court the  charges which  had been earlier established, were framed  again  and served  on  him on 13-2-1971 and we are  informed  that  the proceeding is still pending. In the meantime, it appears, he was promoted to the post of the  Additional  District  Maggistrate   in  February,  1968 though the High Court was of opinion that he was unbalanced, quarrelsome,  reflect  and undisciplined.   The  High  Court specifically  observed  that though the  appellant  suffered from these defects, It was sincere and working and the other officers  who had superseded him as  Additional  Districting Magistratres  were not much better.  The promotion was  made on  trial  basis  for  a  period  of  one  year  with   the. observation that if during that period his work was found to be unsatisfactory, he ’would be reverted to the rank of Sub- Judge. In  that  year  the  High Court  had  to  face  an  abnormal situation  by  the  retirement of many  District  Judges  on account  of the decision of the Government reducing the  age of retirement from 58 to ’55 years Many, vacancies  occurred and  the  appellant  was  then  promoted  as  an  Additional District  and Sessions Judge on trial basis- for six  months

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in July, 1968.  In January, 1969 he was allowed to  continue on a temporary basis till further orders subject to  further review  of  his  work at the time of  confirmation.   It  is worthy of note that this decision to  continue was taken  on the  report of the present Chief. Justice O. K. Mishra   who was at that time the Administrative Judge. On May 12, 1969 his services were placed at the disposal  of the  Government in the Law Department, who appointed him  as Joint Secretary.  Law, till October 12, 1969.  From  October 13,  1960  to  December 4, 1970 he  was  appointed   by  the Government   as   the  Commissioner  of   Endowments.    The Government was thoroughly dissatisfied with his work and  on December 5, 1970 his services were replaced at the  disposal of the High Court.  The appellant went on leave. 288 On  his  return  to the Judicial  cadre,  he  functioned  as Addison  District and Sessions Judge, Cuttack till July  14, 1971  when  he was ,posted to act as District  and  Sessions Judge  for  12 days in the temporary leave  vacancy  of  the permanent District Judge Mr. P. K Mohanty.  When he was thus acting as District and Sessions Judge for a short period  by way  of stop-gap arrangement, the High Court placed  several restrictions on his administrative powers,. In  the  brief  period that he  was  working  as  Additional District  and Sessions Judge, Cuttack, the appellant  showed gross  indiscretion  by  defying  a  request  made  by   the Distr ict,  Judge in due course of administration.  He  also committed a avejuiudicial misdemeanors.  He heard an  appeal and  posted it for judgment on June 22, 1971.  The  judgment was  delivered on that date and the, appeal  was  dismissed. The  Order-Sheets  of  the  judgment  were  signed  by   the appellant  and the judgment was duly sealed.  Later  in  the day,  however, the appellant scored through  his  signatures both in the Order-Sheet and in the judgment and returned the record  of the appeal to the District Judge for disposal  by making  a  false statement that the judgment  had  not  been delivered and that the parties being known to him it was not desirable  that  he should further hear  the  appeal,  after taking  additional  evidence for which a petition  had  been filed.  This was something quite extraordinary from a  Judge of  the  appellant’s  standing.   When  these  matters  were brought  to  the notice of the High Court the  Registrar  by Order  of the High Court recommended to the Government  that the  appellant  be reverted to the post  of  the  Additional District  Magistrate (Judicial).  There were  already  three departmental  proceedings pending against the appellant  and he  had  also been convicted in a contempt case.   The  High Court  expressly  informed the Government  that  these  four matters   had   not  been  taken   into   consideration   in recommending his reversion and that his reversion was solely due to the fact that his work was found unsatisfactory.  The recommendation  was  accepted  by  the  Government  who   on September 1, 1971 reverted the appellant to the post of  the Additional District Magistrate. On September 10, 1971 the appellant made a representation to the  Chief Minister praying for the withdrawal of the  order of reversion and, if necessary, to suspend him after drawing up a regular depart7 mental proceeding.  The  representation was  forwarded  to the Government with the comments  of  the High Court. Something    unusual   happened.    Without   any    further consultation with the High Court, the Governor cancelled the reversion order by notification dated March 21, 1972 And  on the same day the Chief Minister wrote a confidential D.O. to the Chief Justice by name explaining the circumstances under

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which  the  reversion.  order  was  cancelled.   The   Chief Minister  appeared.  to rely upon a decision of  the  Orissa High  Court which had no- application to the facts  of  this particular  case.   But  any way. it would  appear  that  by reason  of the Order dated March 21, 1972: the reversion  of the  appellant  to  the  post  of  the  Additional  District Magistrate  stood cancelled and he continued to act  in  the post of the Additional District & Sessions Judge, Cuttack. 289 The D.O. letter of the Chief Minister remained unopened till the return of the Chief Justice from New Delhi where he  had gone to attend the Chief Justices Conference.  It was opened by  the Chief Justice on return on March 26, 1972.   But  in the  meantime, the appellant, who had gone on leave,  having known about the order passed on March 21, 1972 asked for his posting.   The rules required that on return from  leave  he should   produce,   a  medical  certificate  and   he   was, accordingly directed to produce one. On March 28, 1972 the Chief Justice placed the letter of the Chief Minister for consideration before the Full Court.  The Full  Court  took  the  decision  to  start  a  disciplinary proceeding  against the appellant and, pending the same,  to place him under suspension in exercise of their powers under Article  235 of the Constitution.  Accordingly on  March  30 1972  the  appellant  was placed under  suspension  and  his headquarters were fixed at Cuttack. The  present contempt proceedings arise out of events  which took  place  after the suspension order.  On  receiving  the suspension order the appellant addressed by letter an appeal to  the  Governor  of Orissal for cancelling  the  order  of suspension   and   for  posting  him  directly   under   the Government.   That is Annexure 8. As the High Court  was  of the  view  that no appeal lay from an  order  of  suspension pending disciplinary charges, it did not forward the  appeal to the.  Governor.  In fact on April 28, 1972 the  Registrar of  the High Court intimated the State Government  that  the appeal  filed  by  the appellant to the  Governor  had  been withheld  by the High Court as no such appeal  lies  against the  order of suspension pending  disciplinary  proceedings. The appellant was also intimated accordingly. On  April 29, 1972 charges in ’the  disciplinary  proceeding were,  framed  by  the High Court and  communicated  to  the appellant  and the appellant was directed to file his  reply to the charges by a certain date. On May 14, 1972 the appellant wrote three letters.  One  was to  the  Registrar and is Annexure 13.  By this  letter  the appellant  intimated  that  he had  moved  the  Governor  to transfer the disciplinary proceedings to the  Administrative Tribunal and that he would take all other alternative steps- administrative  and judicial-to avoid the  proceeding  being dealt  with  by  the  High Court.   The  second  letter  was addressed  to the Governor and is Annexure 15.  It  purports to  be  a representation with a prayer to  direct  the  High Court  to  forward the appeal withheld by it.  There  was  a third  letter  of the same date addressed  directly  to  the Governor  purporting  to  be  a  representation.   That   is Annexure  16.   The prayer was that the  departmental  pro-. seedings  be  reference to the Administrative  Tribunal.   A copy  of this letter was sent to the Registrar of  the  High Court with the following-. remark               "As   the  Honourable  Court  are  likely   to               withhold  such  petitions, this  is  submitted               direct  with copy to the Honourable Court  for               information.    Honourable  Court   may   be,,               pleased   to  send  their  comments  on   this

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             petition to the Governor." 29 0 On  May 22, 1972 the appellant addressed a letter  (Annexure 14) to the Registrar intimating him that he would not submit any explanation to the charges framed against him until  his representation  to  the Governor was disposed of.   He  also stated  therein that he may file a writ application for  the purpose  and would take the matter to the Supreme Court,  if necessary.   He  also  stated that he cannot  wait  for  the permission of the High Court for leaving the Headquarters. It  is the contents of these letters on which  a  show-cause notice  for contempt was issued to the appellant  under  the orders of the Full Court on July 3, 1972. On  27-7-1972 the appellant filed his preliminary  objection to the show-cause notice challenging its maintainability  on the  ground that whatever he had said had no  reference  to the  judicial functions of any Judge of the High Court  and, therefore,  no contempt proceedings would lie.  He  pressed- for a decision on the point.  When the matter came before  a Division  Bench  on 3-8-1972 the appellant was  directed  to file his full reply to the show-cause notice.   Accordingly, it was filed on 7-8-1972 and the appellant again pressed for a decision on his preliminary objection.  The Division Bench refused to deal with the preliminary objection and so on 30- 8-1972  the appellant filed Criminal Appeal NO. 174 of  1972 in  this  Court  praying for cancellation  of  the  contempt proceedings  challenging therein the maintainability of  the proceeding and complaining of bias and prejudice of the High Court particularly the Honourable the Chief Justice and  Mr. Justice R.N. Mishra.  He said apprehended that he would  not get  a  fair deal if the matter is disposed of by  the  High court On  21-11-1972 the Supreme Court appeal was  withdrawn.   At the  instance  of  the Division Bench, a PM  Bench  of  five Judges  was constituted by the Chief Justice, and  the  case came on for hearing before the Full Bench on 4-12-1972.   In the  meantime the appeal memo filed by the appellant in  the Supreme  Court was available and since it  contained  matter which amounted to contempt, additional, charges were framed and  a  show-cause  notice was issued to  the  aPPellant  in respect of these additional charges.  A copy of, the appeal memo  containing  the statements amounting  to  contempt  is Annexure 20. The  Annexures  were examined by the court with  a  view  to consider whether the statements therein amount to a criminal contempt.On  a  full and prolonged  consideration  the  Fall Bench  came  to,  the unanimous  conclusion  that  Annexures 8,13,14,16, and 20 contain matters which accounted to  gross contempt  of  court  and since the appellant  had  not  even offered  an  apology,  this was a matter  in  Which  serious notice  ought to be taken, especially, in view  of  previous convictions  for  contempt, and, accordingly  sentenced  the appellant to two months simple imprisonment though in  their opinion he deserved the maximum sentence of six months. The several Annexures referred to above have been  extracted by the Fall Bench in its judgment and it as not necessary to reproduce  them  here.  It will be sufficient  to  reproduce only those portions 29 1 which  were  regarded as grossly contemptuous and  had  been under-lined in the judgment. Annexure 8. As already stated this is a letter in the, form of an appeal addressed to the Governor of Orissa complaining against  the suspension  and  praying  for  stay  of  operation  of   the

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suspension  order on the basis. of the advance copy sent  to the  Governor  for  its cancellation  and  for  posting  the appellant  directly under the Government. it is dated  10-4- 1972.  The appeal had been routed through the  High  Court but  the  High  Court did not forward  the  same.   In  this annexure  reference is made to the previous appeal filed  by him  against  the order of the High Court stopping  his  two increments  after  a departmental proceeding   and  how  the Governor in appeal had cancelled even the very  departmental proceeding  in  the appeal.  An interpretation was,  put  on that order which it did not bear and it was made out, though falsely, that the punishment had been set aside on the basis of   the  allegations  made  by  the  appellant  that   some Honourable  Judges  of the High Court had  been  biased  and prejudiced  against  him.   The  appellant  also  asked  the Governor  to  appreciate  that  by  the  said   departmental proceedings  the High Court had put the Exchequer to a  very heavy loss "all on accounts of the palpable incorrect  views of  the  High Court." Then the  appellant  says  that  the present  action,. namely , the order of  suspension  clearly disclosed mala fides.  He suggested that there were  several "embarrassing events" which he could offer for consideration of  the Governor- but he was content at this stage to  refer to only one of them.  In this connection he referred to  the fact  that  when  he intimated to the  High  Court  that  he desired to join duties after his leave on March 20, 1972  he was  informed by the High Court on March 23, 1972  that  his re-posting  after leave would be decided after  the  medical board  reported  as  to his fitness. to  join  after  leave. This, according to the appellant, showed that the High Court had  already  taken a decision in the absence of  the  Chief Justice that the appellant should be re-posted.  But on  the return  of  the Chief Justice from New; Delhi  there  was  a sudden  change., He clearly suggested that after  the  Chief Justice’s return, the court took the decision to suspend him and in this connection he made the following observations :               "This  decision of the High Court, reached  at               before   the  Honourable  the  Chief   Justice               attended  the  High Court on  the  27th  March               after  his 10 days of absence,  clearly  indi-               cates   that   no   proceeding,   much    less               suspension,  against the appellant  was  under               contemplation till that day, but on the  other               hand,  the  appellant’s place of  posting  was               under   consideration  of  the   High   Court.               Circumstances clearly disclose that after  the               return  of the Honourable Chief  Justice,  the               Government’s  order,  disapproving  the   High               Court’s  views about the appellants  demotion,               was not accepted gracefully by the High Court,               and  so subterfuge was adopted  to  counteract               the  said  decision of. the  Government  by  a               novel  step, thus to deprive the appellant  of               the  result of the said decision. In  view  of               this patent mala fide alone, such an action               292               is  liable  to be quashed,  by  any  competent               Court of law."               Then at a later stage the appellant says               "The  appellant happens to be the  senior-most               judicial  officer  in  the  State  as  regards               length of service, and he has already 20  more               months  before attaining the age  of  superan-               nuation.   Hence,  he  may  not  deserve   the               present  unwarranted,  sudden  and  mysterious

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             suspension.   giving  rise  to   speculations,               touching his integrity."               Then again he says               "........ the treatment of the High Court  may               require that after cancellation of this  order               of suspension, he be brought under the  direct               control  of the Government in a  special  post               for  the rest of his service career of  hardly               20 months more."               The High Court at para 61 of the judgment  has               observed as follows :               "In the appeal memo (Annexure-8) the condemner               attributed  mala fides, bias and prejudice  to               the  High Court.  He made  false  insinuations               that  the  Governor  cancelled  the   previous               disciplinary proceeding against the  condemner               on  the ground that the same was  vitiated  as               the  High Court had prejudged the  matter  and               the Government set aside the punishment on the               ground  that  three of the  Honourable  Judges               were  biased and prejudiced against  him.   He               alleged   that  the  disciplinary   proceeding               involved  the Government in heavy expenses  on               account of the palpably incorrect views of the               High  Court.   He asserted that the  order  of               suspension  as per Annexure-6 was  mala  fide.               He  stated  that he would produce  more  facts               relating  to the mala fides of the High  Court               before the Governor.  He alleged that the High               Court   did   not   gracefully   accept    the               Government’s  order cancelling  his  demotion,               and the High Court resorted to a subterfuge to               counter-act   the   said   decision   of   the               Government  by taking a novel step,  and  that               the  High Court’s action suffered from  patent               mala fide.  He stated that there was a turn of               event  after return of the Chief Justice  from               the  Chief Justices’ Conference and  that  the               High   Court  did  not   accept   Government’s               decision. gracefully and that the other Judges               had no independent judgment of their own,  and               were influenced by the Chief Justice to take a                             view,  different  from what they  had  already               taken,   to  give  a  posting  order  to   the               contemner, and that the High Court resorted to               a  subterfuge.   He wanted protection  of  the               Govern   against  the  High  Court  which   he               insinuates  as  an engine of  oppression.   He               characterised   the  High  Court’s  order   of               suspension  as mysterious and prayed that  the               Government should post him directly under it." We  have  no  doubt  that  the  Full  Bench  has   correctly summarized  the  effect of Annexure-8, and we  have  nothing more, to add. 29 3 Annexures  13 and 14 should go together.  Annexure 13  is  a letter by the appellant to the Registrar dated May 14,  1972 in which he told him that he had moved the Governor,  Orissa with a prayer to refer his matter to the Tribunal under  the provisions  of the Disciplinary Proceedings Rules, 1951  and also  that  he  would  take  all  other  alternative   steps "administrative and judicial" to avoid this proceeding being dealt with by the High Court and for this purpose would have to  consult some prominent Advocates of Calcutta and  Delhi.

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Annexure-14  is a further letter dated May 22, 1972  to  the Registrar  intimating  him  that he  would  not  submit  any explanation  to the charges framed until his  representation to  the Governor was disposed of. In this letter he  further pointed  out that it would not be possible for him  to  wait for the permission of the High Court to leave  headquarters, because he may be called by his legal advisers at any moment and  in  those circumstances he said "I  hereby  inform  the Honourable  Court  that I may be absent  during  the  entire period  mentioned in my letter dated the 14th May, 1972  and the Honourable Court may kindly approve of the same." The effect of Annexares-13 and 14 has been summarised by the Full Bench in these words :               "Thus,  in Annexures-13 and 14, the  contemner               exhibited  a  contemptuous  defiance  of   the               Court’s order, by declaring that he would  not               obey  the order. and would leave  the  station               without  waiting for permission from the  High               Court,  as his first consideration was to  "go               out in connection with legal advice and filing               applications and appeals in the Supreme Court"               in matters-connocted with his suspension,  and               to  take  all steps to  avoid  the  proceeding               being  dealt  with by the High  Court.   These               passages  depict, in unequivocal  terms,  that               the  dispensation of justice by the Judges  of               the High Court on its administrative side,  is               most  atrocious  and vindictive and it  is  on               that ground. the contemner would not obey  the               Court’s  order, could not submit any  explana-               tions,  and would take all  possible  measures               before the Supreme Court, the Governor and the               Chief   Minister  not  to  surrender  to   the               jurisdiction  of the High Court.   His  entire               attempt has been to present a lurid picture of               the  administration  of justice, by  the  High               Court." In the context, we are not prepared to say that this summary of the effect of Annexures 13 and 14 is far wrong. Annexure 16. That brings us to Annexure 16.  It Is dated May 14, 1972 and purports to be a representation made by the appellant direct to  the Governor without routing it through the High  Court. The  following  passages have been underlined  by  the  Full Bench as being grossly contemptuous.               "......    the   High   Court   have   already               contemplated     in      this     departmental               proceedings,  a very heavy punishment for  the               petitioner."               294               "If   on  two  such  allegations,   bias   and               prejudice  of the High Court was disclosed  by               strongly   pleading   for  demotion   of   the               petitioner,   the  multiple  number  of   such               charges  may  naturally make  the  petitioner,               apprehensive of the result of the proceedings,               if conducted by the High Court."               "........  the  High Court  even  without  any               authority  or jurisdiction in this regard  and               on   the  face  of  the  directions   of   the               Government in Political and Servoes Department               communicated  in  the  Government’s  Memo  No.               3559-Gen.,  dated  the 15th March  1958,  have               placed the petitioner under suspension-"               "The  High Court have also taken unusual  move

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             in placing the petitioner under suspension  in               a ’contemplated proceeding’ "               ". . . . the High Court on the  administrative               side,  is  seriously  prejudiced  and   biased               against  him, and they act, as if the  charges               stand  established, requiring extreme  punish-               ment  and as such, justice, may not  be  meted               out  to the petitioner by the High  Court,  if               they conduct this departmental inquiry."               "........  the  petitioner considers it  risky               to submit his explanation to the High Court."               "........  the High Court in-the best interest               of  justice,should  not  enquire  into   these               charges."               A copy of the above representation was sent to               the  Registrar and the  following  endorsement               appears thereon.               As the Honourable Court are likely to withhold               petitions  this is submitted direct with  copy               to the Honourable Court for information.   The               Honourable Court may be pleased to send  their               comments on this petition to the Governor."               The  summary of the effect of  Annexure-16  is               given  by  the Full Bench in para  70  of  the               judgment which is as follows :               "In  Annexure-16 the contemner  has  suggested               that  the  Court  has  already  prejudged  the               matter  and has taken a previous  decision  to               impose a heavy punishment.  Bias and prejudice               on the part of the Court were also alleged  by               the contemner.  He suggested that the Court is               not  in a position to weigh the evidence.  and               consider the materials on record and to impose               a sentence commensurate with his  delinquency.               The  action taken by the High Court  has  been               branded as unusual............."               "A  copy of this Annexure 16 was sent  to  the               High  Court  with a contemptuous  remark  that               since  the High Court was likely  to  withhold               the representation it was submitted direct  to               the Governor.  Not being satisfied with  that,               he issued a further directive to the court  to               send  their comments on his representation  to               the Governor. 295 The  above summary of the effect of Annexure-16 is,  in  our view, correct. Annexure-20. This  annexure is the memo of appeal filed by the  appellant in the Supreme Court in Criminal Appeal No. 174 of 1972. The appeal had been filed because the Division Bench had refused to  consider  his preliminary objection with regard  to  the maintainability  of the present contempt  proceedings.   The grievance before the Supreme Court was that the, Orissa High Court had taken. six contempt proceedings against him and in view.  of  what happened in some of those  proceedings,  the appellant entertained apprehension that the court may impose substantive  punishment and may refuse bail or time  to  the appellant for getting redress from the Supreme Court if  the present  contempt-proceedings were also to go on before  the same  High Court.  In the first contempt  proceeding  though the  proceedings  were dropped, Adverse comments  were  made against his conduct thus depriving him of an opportunity  to go in appeal and have the adverse comments exnged. in one of the  other cases he says........ the appellant  was  brought

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down to the Court-hall, and the Honourable Judges  convicted and  sentenced  the appellant and without affording  him  an opportunity  to  obtain  stay  of  the  sentence  from  this Honourable  Court,  executed the sentence  by  administering admonition in the, open court and sounding warning that,  if at any time such contumacious conduct of his was noticed,  a very serious view would be taken about punishment." In the other contempt matter, he alleged, a Judge wanted  to add  a new charge.  The appellant objected to the  same  and went  in appeal to the Suprerac, Court.  The appellant  says that  when the appellant filed his appeal in this Court  and brought  this fact to the notice of the Honourable  Judges,, they dropped the additional charge.  In another  proceeding, he says, the Honourable Judges while dropping the proceeding found out a very innocent and inconsequential mistake in the sworn counter-affidavit of the appellant and on that account ordered  the filing of a criminal complaint for  an  offence under section 199 of the I.P.C. In ground (1) the  appellant alleged that the appellant fears bias of the Honourable High Court  against  him in view of the facts  and  circumstances stated above. The  Full Bench in its judgment has considered each  one  of them  allegations  in  the appeal memo  and  shows  how  the insinuations were false and how plain facts were  distorted, They  are  entirely  right in  ,ummarising  these  facts  of Annexure 20 in these words:               "Thus  in  Annexure-20 the contemner  has,  in               clearest  terms,  alleged bias  and  prejudice               against the High Court and its Chief  Justice.               He  has taken the plea that the  court  itself               has become disqualified to deal with the case-               In  his  view the Judges of  this  Court  have               fallen  from  the path of rectitude,  and  are               vindictive, and have already decided to impose               substantive sentence and refuse bail, and they               are not in a position to mete out  even-handed               justice.,               -522SCI/74 296 disrespectful   fulminations  of  an   angry   insubordinate officer, there is hardly any doubt that Annexures 8, 16  and 20 contain statements which are deliberately made to grossly scandalize the High Court.  The Judges of the High Court and especially  the Chief Justice are charged with  mala  fides, improper  motives,  bias and prejudice.  It is  insinuated that   they  are  oppressing  the  appellant,  have   become vindictive  and are incapable of doing him justice.   It  is also   suggested  that  they  do  not   administer   justice fearlessly  because in one matter affecting  the  appellant, they  dropped a charge against him for fear of  the  Supreme Court.    All   this,   prima  facie,   amounts   to   gross scandalization of the High Court. The  law applicable to this case is the law as contained  in the Contempt of Courts Act, 1971 No. 17 of 1971.  Section  2 defines  "Contempt of Court", as either "civil contempt"  or "criminal contempt".  Clause (c) defines "criminal contempt" as follows :               (c)   "criminal     contempt"    means     the               publication  (whether  by  words,  spoken   or               written,  or  by signs, or by  visible  repre-               sentations, 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; or

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             (ii)  prejudices,  or interferes or  tends  to               interfere with, the due course of any judicial               proceeding; or               (iii) interferes  or tends to interfere  with,               or   obstructs  or  tends  to  obstruct,   the               administration   of  justice  in   any   other               manner;" It will be seen that the terminology used in the  definition is  borrowed from the English law of Contempt  and  embodies concepts which are familiar to that law which, by and large, was   applied  in  India.   The  expressions   "scandalize", "lowering  the  authority  of  the  court",  "interference", "obstruction" and "administration of justice" have all  gone into the legal currency of our sub-continent and have to  be understood  in  the  sense in which they have  been  so  far understood  by our courts with the aid of the  English  law, where necessary. The  first sub-clause generally deals with what is known  as the  scandalization of the court discussed by  Halsbury  3rd Edition in Volume 8, page 7 at para 9 : "Scandalous  attacks upon Judges are punished by attachment or committal upon the principle  that  they are, as against the  public,  not  the judge,  an obstruction to public justice; and a libel  on  a judge, in order to constitute a contempt of court, must have been  calculated  to  cause such  an  obstruction......  The punishment  is inflicted, not for the purpose of  protecting either the court as a whole, or the individual judges of the court from a repetition of the attack, but of protecting the public,  and especially those who either voluntarily  or  by compulsion  are  subject to the jurisdiction of  the  court, from  the mischief they will incur if the authority  of  the tribunal is undermined or impaired." Sub-clause (1) embodies the above concept and takes in cases when by the publication or the fact the 29 7 administration. of justice is held to ridicule and contempt. This  is  regarded  as an "obstruction"  of  public  justice whereby  the  authority of the court  is  undermined.   Sub- clause  (1)  refers  to one species  of  contempt  of  which "obstruction"  is  an important  element.   Sub-clause  (ii) speaks   of,  interference  with  due  course  of   judicial proceedings and is directly connected with administration of justice in its common acceptance. While  clauses  (i)  and  (ii)  deal  with  obstruction  and interference  respectively in the particular  way  described therein, clause (iii) is a residuary Provision by which  any other   type  of  obstruction  or  interference   with   the administration   of  justice  is  regarded  as  a   criminal contempt. In other words, all the three sub-clauses referred to  above define  contempt in terms of obstruction of or  interference with  administration  of  justice.   Broadly  speaking   our statute, accepts what was laid down by the Privy Council and other  English authorities that proceedings in contempt  are always with reference to the administration of justice.   It is enough for our purpose  to refer to Debi Prasad Sharma-v. The  Kin.g-Emperor(1)  in which Lord  Atkin  delivering  the judgment  of the Judicial Committee observed at page 223  as follows : "In 1899 this Board pronounced proceedings for this  species of contempt (scandalization) to be obsolete in this country’ though  surviving  in other parts of the  Empire,  but  they added  that it is a weapon to be used sparingly  and  always with reference to the administration of Justice : McLeod  v. St. Aubyn (1) [1899] A.C. 549.  In In,re a Special  Referewe

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from  the Bahama Islands-[1893] A.C. 1-38) the test  applied by  the,  ve  strong Board which  heard  the  reference  was whether  the  words complain  of were in  the  circumstances calculated  to  obstruct  or interfere with  the  course  of justice and the due administration of. the law.  In Oueen v. GraY-[1900](2)  Q.  B. 36 it was show that  the  offence  of scandalizing  the,  court itself was not  obsolete  in  this country.  A very scandal us attack had been made on a fudge for  his judicial utterances while sitting in a  criminalase on circuit and it was with the foregoing opinions on  record that lord Russell of Killowen, C.J., adopting the expression of  Wilmot,  C.J.  in his opinion  in  Rex.  v.  Almon-(1765 Wilmot’s  Notes of Opinions, 243 97 E.R. 94) ,which  is  the source  of much of the present law on the subject, spoke  of the  article  complained  of  as  calculated  to  lower  the authority of the judge. It  is,  therefore,  clear that  scandalization  within  the meaning of subclause (1) must be in respect of the court  or the Judge with reference to admims tration of justice. The  contention  of Mr. Sen on behalf of  the  appellant  is that,  in the first place’, it must be remembered  that  the publication  or acts complained of are in the course of  the appellant   challenging  his  suspension  and   holding   of disciplinary  proceedings in an appeal or representation  to the Governor from the orders passed by the High Court.   In Anexure-20  he was challenging the order of the  High  Court before (1)  70 Indian Appeals, 216. 298 the  Supreme Court.  The appellant in his  submission,  bona fide  believed  that  he  had a  right  to  appeal  and,  in pursuance  of  the  right  he  thus  claimed  he  had  given expression to his grievance or had otherwise acted, not with a  view to malign the court or in defiance of it,  but  with the  sole  object of obtaining the reversal  of  the  orders passed by the High Court against him.  In the second  place, Mr.  Sen contended, the passages about which  the  complaint was made did not amount to contempt of court since they  did not  purport to criticize any judicial’ acts of  the  judges sitting  in  the seat of justice.  It may be  that  in  some places disrespectful references have been made to the Judges which  Mr. Sen assures us, he should have, never  done.   At the   same   time,   in   his   submission,   criticism   of administrative  acts of the High Court even in  vilification terms did not amount to contempt of court. So  far as the first part of the argument is concerned,  the same must be dismissed as unsubstantial because if, in  fact the  language  used amounts to contempt. of  court  it  will become punishable as criminal contempt.  The right of appeal does not give the right to commit contempt of court, nor can it  be  used as a cover to bring the authority of  the  High Court  into disrespect and disregard.  It has been  held  by this  Court  in Jugal Kishore v.  Sitamarhi  Central  Co-op. Bank()  that  allegations of mala fides in  the  grounds  of appeal to the Joint Registrar of Cooperative Societies  from the Order of the Assistant Registrar would constitute  gross contempt. A point of some substance is in the second part of Mr. Sen’s argument  and it will be necessary to decide in the  present case whether contemptuous imputations made with reference to "the administrative acts" of the High Court do not amount to contempt of Court. The  answer to the point raised by Mr. Sen will depend  upon whether  the  amputations  referred to above do  or  do  not affect  administration  of Justice.  That is  the  basis  on

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which  contempt  is punished and must afford  the  necessary test. We have not been referred to any comprehensive definition of the    expression   "administration   of   justice".     But historically, and in the minds of the people, administration of  justice  is exclusively associated with  the  Courts  of justice constitutionally established.  Such courts have been established  throughout the land by several  statutes.   The Presiding  Judge of a court embodies in himself  the  court, and  when  engaged in the task of administering  justice  is assisted by a complement of clerks and ministerial officers( Whose  duty  it  is to protect  and  maintain  the  records, prepare  the  writs, serve the processes etc.  The  acts  in which they are engaged are acts in aid of administration  of justice by the Presiding Judge.  The power of appointment of clerks  and  ministerial  officers  involves  administrative control  by  the Presiding Judge over them and  though  such control  is  described as administrative to  distinguish  it from  the duties of a Judge sitting in the seat  of  justice such  control is exercised by the Judge as a Judge,  in  the course of judicial administration.  Judicial  administration is an integrated function of the judge and cannot suffer any dissection  so  far  as maintenance  of  high  standards  of rectitude in judicial administration is con- (1)  A.I.R. 1967 S.C. 14-94 299 cerned.   The whole set up of a court is for the purpose  of administration of justice, and the control which the  Judge, exercises  over  his  assistants  has  also  the  object  of maintaining the purity of administration of justice.   These observations  apply  to all courts of justice  in  the  land whether they are regarded as superior or inferior courts  of justice.  Courts   of   justice  have,  in  accordance   with   their constitutions.  to  perform multifarious functions  for  due administration  of  ’justice.   Any lapse  from  the  strict standards  of  rectitude in performing  these  functions  is bound to affect administration of justice which is a term of wider import than mere adjudication of causes from the  seat of justice. In  a country which has a hierarchy of courts one above  the other,  it is usual to find that the one which is  above  is entrusted  with disciplinary control over the one below  it. Such control is devised with a view to ensure that the lower court functions properly in its judicial administration.   A Judge can foul judicial administration by misdemeanors while engaged in the exercise of the functions of a Judge.  It  is therefore as important for the superior court to be vigilant about the conduct and behavior of the Subordinate Judge as a Judge,  as  it  is  to  administer  the  law,  because  both functions are essential for administration of justice.   The Judge  of  the  superior court  in  whom  this  disciplinary control  is  vested  functions as much as a  Judge  in  such matters  as when he hears and disposes of cases before  him. The  procedures may be different.  The place where  he  sits may  be  different.  But the powers are  exercised  in  both instances  in  due course of  judicial  administration.   If superior  courts neglect to discipline  subordinate  courts, they  will  fail  in  an  essential  function  of   judicial administration and bring the whole administration of justice into   contempt  and  disrepute.   The  mere   function   of adjudication   between   parties  is  not   the   whole   of administration of justice for any court.  It is important to remember  that disciplinary control is vested in  the  court and  not  in  a Judge as  a  private  individual.   Control,

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therefore,   is   a   function  as   conducive   to   proper administration  of justice as laying down the law  or  doing justice between the parties. What is commonly described as an administrative function has been,  when vested in the High Court, consistently  regarded by  the  statutes as a function in  the  administration’  of justice.   Take for example the Letters Patent for the  High Court  of  Calcutta.  Bombay and Madras.  Clause  8  thereof authorises and empowers the Chief Justice from time to  time as occasion may require "to appoint so many and such  clerks and  other ministerial officers it shall be found  necessary for  the administration of justice End the due execution  of all the powers and authorities granted and committed to  the said High Court by these Letters Patent." It is obvious that this  authority of the Chief Justice to appoint  clerks  and ministerial  officers  for  the  administration  of  justice implies  an  authority to control them in  the  interest  of administration of justice.  This Controlling function  which is  commonly  described  as  an  administrative  function-is designed with the primary object of securing  administration of justice.  Therefore, 300 when  the  Chief Justice appoints ministerial  officers  and assumes disciplinary control  over them, that is a  function which though described a administrative is  really  in   the course of administration of justice., Similarly section   9 of  the High Courts Act, 1861 while conferring on  the  High Courts    several  types of jurisdictions and  powers  says- that all such jurisdiction    and  powers  are "for  and  in relation to the administration of justice in the  Presidency for which it is established."- Section 106 of the Government of  India  Act,  1915  similarly  shows  that  the,  several jurisdictions  of  the High Court and all their  powers  and authority are "in relation to the administration of  justice including  power  to appoint clerks  and  other  ministerial officers  of  the court." Section 223 of the  Government  of India Act, 1935 preserves the jurisdictions of the. existing High Courts and, the respective powers of the Judges thereof in  relation to the administration of justice in the  court. Section  224 of that Act declares that the High Court  shall have  superintendence over all courts in India for the  time being  subject  to  its  appellate  jurisdiction  and   this superintendence,   it  is  now  settled,  extends  both   to administrative  and  judicial functions of  the  subordinate courts.   When  we  come to our constitution  we  find  that whereas  Articles  225 and 227 preserve and to  some  extent extend  these  powers  in  relation  to  administration   of justice,  Article  235 vests in the High Court  the  control over District Courts and Courts Subordinate thereto.  In the State of west Bengal v. Nripendra Nath Bagchi(1) this  Court has  pointed out that control under Article 235  is  control over  the conduct and discipline of the Judges.  That  is  a function  which,  as we have already  seen,  is  undoubtedly connected with administration of justice.  The  disciplinary control over the misdemeanours of the subordinate  judiciary in  their  judicial administration is a function  which  the High  Court must exercise in the interest of  administration of  justice.   It is a function which is essential  for  the administration  of  justice in the wide connotation  it  has received and, therefore, when the High Court functions in  a disciplinary  capacity, it only does so in  furtherance  of administration of justice. We thus reach the conclusion that the courts of justice in a State   from  the  highest  to  the  lowest  are  by   their constitution  entrusted  with functions  directly  connected

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with   the  administration  of  justice,  and  it   is   the expectation  and confidence of all those who have or  likely to  have business therein that the courts perform all  their functions  on  a high level. of rectitude  without  fear  or favour, affection or ill-will.  And  it is this traditional confidence in the  courts  that justice will be administered in them which is sought to  be, protected  by  proceedings  in  contempt.   The  object,  as already stated, is not to vindicate the Judge personally but to  protect  the  public against any  undermining  of  their accustomed confidence in the Judges’ authority.  Wilmot C.J. in his opinoin in the case of Rex v. Almon alreadly referred to says : "The arraignment of the justice of the Judges,  is arraigning  the King’s justice, it is an impeachment of  his wisdom and goodness in the choice of his Judges, and excites in  the minds of the people a general  dissatisfaction  with all  judicial determination, and indisposes their  minds  to obey  them; and whenever men’s allegiance to the laws is  so fundamen- (1)  [1966] (1) S.C.R. 771. 301 tally  shaken,  it  is the most  fatal  and  most  dangerous obstruction  of justice, and in my opinion, calls out for  a more rapid and immediate redress than any other  obstructing whatsover;  not  for  the sake of. the  Judges,  as  private individuals, but because they are the channels by which  the King’s justice is conveyed to the people.  To be, impartial, and  to  be  universally thought  so,  are  both  absolutely necessary  for  the  giving justice  that  free,  open,  and uninterrupted  current, which it has, for many ages,’  found all  over this kingdom......... Further explaining  what  be meant  by  the words "authority of the court",  he  observed "the word "authority" is frequently used to express both the right  of  declaring  the  law,  which  is  properly  called jurisdiction,  and  of enforcing obedience to it,  in  which sense  it is equivalent to the word power : but by the  word "authority",  I  do  not mean that  coercive  power  of  the Judges, but the deference and respect which is paid to them. and  their  Acts,  from  an opinion  of  their  justice  and integrity." Scandalization of the court is a species of contempt and may take  several forms.  A common form is the  vilification  of the Judge.  When proceedings in contempt are taken for  such vilification  the  question which the court has  to  ask  is whether  the vilification is of the Judge, as a Judge.   See Queen  v. Gray(1) or it is the vilification of the Judge  as an  individual.   If the latter, the Judge, is left  to  his private  remedies and the court has no power to  commit  for contempt.  If the former, the court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt.  Secondly, the court will have also to consider the degree of harm caused as affecting administration  of justice and, if it is slight and  beneath notice, courts will not punish for contempt.  This  salutary practice, is adopted by section 13 of the Contempt of Courts Act,  1971.  The jurisdiction is not intended to uphold  the personal  dignity  of the Judges.  That must rest  on  surer foundations.  Judges rely on their conduct itself to be  its own vindication. But  if  the  attack on the Judge  functioning  as  a  Judge substantially affects administration of justice it becomes a public mischief punishable for contempt, and it matters  not whether  such an attack is based on what a judge is  alleged to  have,  done  in  the  exercise  of  his   administrative responsibilities.  A Judge’s functions may be divisible, but

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his integrity and authority are not divisible in the context of administration of justice.  An unwarranted attack on  him for corrupt administration is as potent in doing public harm as an attack on his adjudicatory function. The  Full Bench has considered a very large number of  cases and come to the conclusion that there is no foundation.  for the  view  that an attack on the court in  its  exercise  of administrative  functions does not amount to  contempt.   In Brahma  prakash  Sharma  and others v. The  State  of  Uttar pradesh(2)  it  is pointed out that the object  of  contempt proceedings is not to afford protection to judges personally from nations to which they may be exposed as individuals but intended,as protection to the public those interest would be very much affected, (1) [1900] (2) Queen’s 13 36 at page 40. (2 ) [1953] S.C.R. 1169. 302 if  by the act or by the conduct of any party the  authority of  the court is lowered and thee sense of confidence  which the  people have in the administration of justice by  it  is weakened.   The case is no authority to the proposition  put forward by Mr. Sen. In Gobind Ram v.’State of Maharashtra(1) some  observations of Jagannadhadas, C.J. (as he then  was) in the State v. The Editors and Publishers of Eastern  Times and Prajatantra(2) were quoted by this Court with  approval. These observations are : "’A review of the cases in which  a contempt committed by way of scandalization of the court has been  taken notice of for punishment shows clearly that  the exercise  of the punitive jurisdiction is confined to  cases of  very grave and scurrilous attack on the court or on  the Judges  in  their judicial capacity. the ignoring  of  which could only result encouraging a repetition of the same  with the sense of in unity which would thereby result in lowering the  prestige  and  authority of the  court."  Mr.  Sen  has particularly  emphasised the words "judicial  capacity"  and argued that this only refers to the Judge functioning in the seat of justice.  It does not appear from the report of  the Orissa  case that the High Court was in any  way,  concerned with    the   alleged   dichotomy   between   the    Judge’s administration  functions and his ad  judicatory  functions. "Judicial  capacity"  is an ambivalent term  which  means  " capacity  of or proper to a Judge" and is capable of  taking in   all   functional   capacities  of   a   Judge   whether administrative, adjudicatory or any other, necessary for the administration  of justice.  There is no sufficient  warrant to hold that the Orissa High Court used the words  "judicial capacity" with a view to exclude all other capacities of the Judges  except the capacity to adjudicate, nor  for  holding that  this  Court  approved the use  of  the  expression  as limited to the.  Judges’ adjudicatory  function. On  the  other  hand,  there  is  high.  authority  for  the proposition   that   vilificatory  criticism  of   a   Judge functioning as a Judge even in purely administrative or non- adjudicatory matters amounts to criminal contempt.  The case of Rex v. Almon already referred to is a case of this  kind. Almon  published a pamphlet in which the Chief Justice  and, impliedly, all the Judges of the court of King’s Bench  Were accused  of deliberately delaying or defeating the issue  of the process of Habeas corpus by introducing a new rule  that a  petition praying for the issue of that process should  be accompanied  by  an  affidavit.   It  was  held  that   this constituted  contempt of court.  The Chief Justice  and  the Judges  were  not criticized for what they were doing  in  a judicial  proceeding  from  the "seat of  justice"  but  for making  a  rule  which, ’in the opinion of  the  writer  was

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deliberately  designed  to delay or defeat  the  process  of habeas  corpus.  Apparently. the rule had been made  by  the court  under its power to regulate proceedings in court  and not  in any judicial proceeding between parties to a  cause. The  rule  Was Made Under the rule making  function  of  the court  and not in exercise of any adjudicatory  function  as narrowly  interpreted  now, and still it was held  that  the court  was scandalized and its authority lowered.   In  Mott Lal  Ghose  and  others(3) a strong special  bench  of  five Judges  held  that  an imputation  made  against  the  Chief Justice  of the Calcutta High Court suggesting that  he  was improperly motivated in constituting a packed bench (1) [1971] 1.S.C.C. 740. (2)  A-I.R. 1952 orissa, 318. (3) XLV-Calcutta 169. 303 to hear a particular class of appeals was held to amount  to contempt.   Sanderson, C. J. observed at page 180 : "I  have no  doubt that this article, read by itself,  constitutes  a very  serious  reflection  upon the  administration  of  the court,  which  everyone knows is in the hands of  the  Chief Justice."  Woodroffe, J. at page 199 observed : "The  Court, however,  in  such  cases does not seek  to  vindicate  any, personal   interests   of  the  Judges,  but   the   general administration  of  justice,  which is  a  public  concern." Mookerjee,  J  at  page,  231 observed :  "it  seems  to  me indisputably  plain  that  the  implication  of  the  second article,  whether taken along with or independently  of  the first, is that, at the instance of person$ interested in the Calcutta   Improvement   Trust,  the   Chief   Justice   has constituted  a Special Bench to ensure a decision  favorable to  the  Trust in the appeals against the  judgment  of  Mr. Justice  Greece." Proceeding further he held "an  imputation of  this character constitutes a contempt of court." It  was the  function of the Chief Justice as Chief Justice  of  the Court to administratively form, front time to time,  benches for the disposal of the business of the court.  To attribute improper motives to him in the exercise of this function was held  to be a contempt because that was bound  to  undermine the  confidence  of  the people in the High  Court  and  its Judges in relation to administration of justice.  Similarly, in  The state of Bombay v. Mr. P.(1)" "a  scurrilous  attack on.  the  court  receiver for  alleged  misbehavior  in  his official  duties and a charge against the Chief Justice  and the  administrative judges for deliberately conniving at  it were  held to constitute contempt.  The same argument as  is now  put forward was made in that case. (See para 14 of  the report), but was rejected in these words : "By making  these foul  attacks upon the Judges, the respondent has  tried  to create  an apprehension in the mind of the public  regarding the  integrity of these Judges and has done a wrong  to  the public.   He  has attempted to shake the confidence  of  the public  in the Judges of this Court and in the justice  that is being administered by these judges of this Court."  There is no such thing as a denigration of a Judge  function-wise. This is brought out clearly in the judgment of the  Judicial Committee  in  Debi  Prasad Sharma v.  The  King  Emperor(2) referred  to  earlier.   In  that  case  the  appellant  had suggested  falsely that the Chief Justice of  the  Allahabad High  Court  had in his administrative  capacity,  issued  a circular  to  the Judicial Officers under  his  jurisdiction enjoining  on  them to raise contributions to  the  warfares which, it was said, would lower the prestige of the court in the eyes of the people.  In holding that the imputation  did not constitute contempt of court but at the most, a personal

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defamation of the Chief Justice in his individual  capacity, Lord Atkins said at page 224, "When the comment in  question in the present case is examined it is found that there is no criticism  of any judiciaries of the Chief Justice,  or  any imputation on him for anything done or omitted to be done by him in the- administration of justice. it can hardly be said that  there  is any criticism of him in  his  administrative capacity, for, as far as their Lordships have been informed, the administrative control of the subordinate courts of the. Province,  whatever  it is, is exercised, not by  the  Chief Justice, but by the. court over, which he presides." (1) A.I.R. 1959 Bombay 182. (2) 70 Indian Appeals 216. 304 The  words underlined above are important.  In holding  that only ordinary remedies for defamation were open to the Chief Justice,   their  Lordships  had  to  ask  the   substantial question,  as suggested by Lord Watson during the course  of the  arguments  in Re : Special Reference  from  the  Bahama Islands(1) "whether the letter complained of referred to him in his official capacity." With that case obviously in mind- and  the case was referred to earlier in  the  judgment-lord Atkin  showed in the words quoted above that  the  criticism did  not refer (i) to any judicial act, meaning thereby  any adjudicatory act and (ii) to any administrative act, because the  Chief Justice alone had no administrative control  over the  subordinate courts but only the High Court as a  whole. The  plain  implication  is that if the  circular  had  been alleged  to have been issued by the Chief Justice under  the authority of the High- Court, then the imputation having the effect  of lowering the prestige and authority of  the  High Court  could  conceivably have been  regarded  as  contempt. Their Lordships of the Privy Council are not known to  waste their words over matters not relevant to the issue.  It  was absolutely  necessary for their Lordships to  eliminate  the possibility of the alleged action of the Chief Justice being connected   in   any  manner  with   any   adjudicatory   or administrative  function of the High Court by  pointing  out that   it  did  not  refer  to  any  official  act  in   the administration  of  justice or, as stated in Queen  v.  Gray already refer-, red to, "the act of a Judge as a Judge",  in which  case  alone  the imputation would  have  amounted  to scandalization  of  the court.  The  above  authorities  are sufficient  to show that there is no warrant for the  narrow view  that the offence of scandalization of the court  takes place  only  when  the  imputation  has  reference  to   the adjudicatory  functions, of a Judge in the seat of  justice. We  are unable, therefore, to accept the submission  of  Mr. Sen on this aspect of the case. We have already shown that the, imputations in Annexures  8, 16  and 20 have grossly, vilified the Hugh Court tending  to affect   substantially   administration  of   justice   and, therefore,  the  appellant  was  rightly  convicted  of  the offence of criminal contempt. As  regards the sentence, it is enough to say that the  Full Bench  has considered the question at great  length.   There were six contempt proceedings against the appellant and  the court had treated him generously.  In two proceedings he was let  off  with a fine.  Even in the present  case  the  Full Bench was of the opinion that the maximum sentence under the law was deserved by the appellant but imposed on him only  a sentence  of  simple  imprisonment  for  two  months.    The appellant,  throughout, took a defiant attitude and did  not even think it necessary to offer an apology.  Ordinarily  we would  be  most reluctant to interfere  with  the  sentence-

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imposed  by the High Court, but for the fact that we  notice that  he has almost come to the end of his  judicial  career and during the last few years has been gripped by a sort  of mania  against the High Court which clouded his reason.   We think  the object of punishment will be served by  directing him to pay (1)  [1893] A. C. 138 at 14. 30 5 a  fine  of  Rs.  1,000/- or in  default  to  suffer  simple imprisonment  for 3. months in substitution of the  sentence inflicted by the High Court. It  remains now to point out that when  dealing  principally with  the contempt of the appellant, the court also  thought it  fit to hear the: parties including the  Advocate-General on  some subsidiary but important questions on the  relative position  of the Government of Orissa and the High Court  in the matter of disciplinary control over Subordinate  Judges. It appears that the State Government. framed what are  known as  the Orissa Civil Services (Classification  and  Control) Rules,  1962  and  they appear to apply  to  all  Government servants under the State.  The Full Bench held that some  of the rules, in their application to the Subordinate judiciary of the State, contravened Articles 235 which vested  control over,  the Subordinate Judiciary in, the High  Court.   From these  findings the State of Orissa has come in  appeal  and that  appeal is numbered Criminal Appeal No. 77/1973 In  our opinion, the principal matter before the Full Bench was  in, relation  to the contempt committed by the  appellant.   The constitutional  issue between the State Government  and  the High  Court came in only by way of a side-wind.  In fact  it would  appear from the judgment that the  learned  Advocate- General had requested the court not to. express any  opinion on these constitutional matters, and the court also seems to have thought that the constitutionality of the rules had’ no relation  to the commission of the contempt.   However,  the court thought that the issue became relevant, especially, on the  question of sentence and hence applied its mind to  the Constitutionality of some of the rules.  It has struck  down those rules which, in the opinion of the court,  contravened Article   235  in  their  application  to  the   Subordinate Judiciary.   We have considered whether it is necessary  for us  to dear with those questions here, but are  inclined  to think   that   we   should  express  no   opinion   on   the constitutionality of the impugned rules. Accordingly,   appeal   No.  41  is   dismissed   with   the modification  in,  the  sentence  as  suggested  above   and criminal appeal No. 77 of 1973 is permitted to be withdrawn without prejudice to the contentions raised by the State in regard to the constitutionality of the rules struck down  by the High  Court. KRISHNA  IYER, J. We have had the advantage of reading  the leading  opinion of our learned brother, Palekar,  J.,  and, concurring  as we do in the ultimate conclusion,  to  depart from  the’  option of silenceneeds a  word  of  explanation. Graver  issues  bearing  on  free  speech  raised  in  these proceedings  and the correct approach to be made to what  in substance is a criminal charge, bring to the fore our diver- gence  in  legal reasoning  and  constitutional  perspective which we proceed to set out in a separate opinion. The  facts  of  the present case, fully  laid  bare  in  the judgment  of  Palekar,  J., are in a  sense  peculiar.   The contest  is  himself a senior district judge.   The  alleged multiple  contempt relates partly to (i)  an  administrative act   of   the  High  Court  preliminary   to   disciplinary proceedings   and   is   stated  to  be   contained   in   a

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representation filed 306 by  him before the Governor, under a rule  which  apparently authorizes such appeals, against the suspension order of the High Court, and (ii) averments in a special leave  petition filed by him in this Court, aggrieved by the refusal of  the High  Court to decide a preliminary objection in these  very contempt proceedings on the judicial side.  A: full Bench of the  High Court convicted the appellant for contempt,  the action  itself  having been initiated by  an  administrative full court.  The questions we are called upon to decide  are (a)  whether criticism of an administrative act of the  High Court  or of any court could at all amount to  contempt  of court;  (b) whether pejorative imputations about a court  or judge,  however  offensive, true or honestly  held  even  if contained  in. an appeal to a higher court or in a  remedial representation  to  a  correctional  authority,   constitute contempt.  The legal touchstone adopted by the High Court is that  any  statement  which in some  manner  may  shake  the confidence  of the community in a judge or in  the  judicial system,  is straightaway contempt, regardless of context  or purpose  or  degree of publication or absence of  any  clear land present danger of disaffection or its being a bona fide plea for orderly change in the judicature and its, process. On  the  facts,  we  agree  that  the  spirit  of  defiance, extenuated  partly by a sense of despair, is writ  large  in the  writings  of the appellant but wish to  warn  ourselves that  his  reported past violations should not  prejudice  a judicial appraisal  of  his  alleged   present   criminal contempt.  And the benefit of doubt, if any, belongs to  the condemner in this jurisdiction. The  dilemma  of the law of contempt arises because  of  the constitutional  need to balance two great  but  occasionally conflicting  principles freedom of expression and  fair  and fearless justice remembering the brooding presence of  arts. 19(1) (a), 19(2), 129 and 215 of the Constitution. In  a sense, the Indian approach is a little different  from the English and its orientating on is more akin to  American jurisprudence, although there is much,that is common to  all the three.  The pronouncement of Wilmot, C.J.,  posthumously published, has influenced the law of contempt in the Unite d States  and  the Commonwealth countries, but it  is  a  moot point whether we should still be bound to the regal moorings of th e law in Rex v. Almon(1)               ".  .  by  our constitution the  King  is  the               fountain of justice and .... he delegates  the               power  to the judges .... arraignment  of  the               justice of the judges is arraigning the King’s               justice.   It is an impeachment of his  wisdom               in  the  choice of his judges....  it  excites               dissatisfaction  with  judicial  determination               and  indisposes  the minds of people  to  obey               them". . . . Maybe  we are nearer the republican justification  suggested in the American system(2) (1)  Wilmot’s  notes  243 (Wilmot ed. 1802 =97  ER  94.  as cited in Fox,Contempt of Court (1927). (2)  18 U.S.C.A. 3691 (formerly 28 U. S. C, 386, 389. 30 7               "In  this  country, all  courts  derive  their               authority  from  the people, and  hold  it  in               trust for their security and benefit.  In this               state,  all judges are elected by the  people,               and hold their authority, in a double,  sense,               directly from them; the power they exercise is

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             but  the authority of the  people  themselves,               exercised through courts as their agents.   It               is  the authority and laws emanating from  the               people,  which the judges sit to exercise  and               enforce.   Contempt against these courts,  the               administration  of  their  laws,  are  insults               offered   to  the  authority  of  the   people               themselves,  and not to the humble  agents  of               the  law, whom they employ in the  conduct  of               their government." This shift in legal philosophy will broaden the base of  the citizen’s  right to criticize and render the judicial  power more  socially  valid.  We are not subjects of  a  king  but citizens  of  a  republic  and a  blanket  ban  through  the contempt power, stifling  namely, Administration of justice, thus   criticism of a strategic institution, forbidding  the right  to  argue for reform of the judicial process  and  to comment on the performance of the judicial personnel through outspoken   or   marginally  excessive  criticism   of   the instrumentalities of law. and justice, may be a tall  order. For,  change through free speech is basic to our  democracy, and  to prevent change through criticism is to  petrify  the organs of democratic government.  The judicial instrument is no exception.  To cite vintage rulings of English courts and to bow to decisions of British Indian days   as absolutes is to ignore the law of all laws that the rule of law must keep pace  with  the rule of life. To make our point,  we  cannot resist    quoting McWhinney(1),who wrote               "The dominant   theme  in American  philosophy               of law today must be the concept of  change-or               revolution-in  law.   In  Mr.  Justice  Oliver               Wendell Hoimes’ own aphorism, it is  revolting               to  have  no better reason for a rule  of  law               than  that  it was laid down in  the  time  of               Henry  IV.   The prestige argument,  from  age               alone,  that because a claimed legal rule  has               lasted  a  certain  length  of  time  it  must               automatically  be  valid and  binding  at  the               present  day, regardless of changes  in  basic               societal  conditions and expectations,  is  no               longer  very  persuasive.   According  to  the               basic  teachings  of  the  Legal  Realist  and               policy  schools of law, society itself  is  in               continuing state of flux at the present  day’;               and  the positive law, therefore, if it is  to               continue  to  be useful in the  resolution  of               contemporary major social conflicts and social               problems,  must  change in  measure  with  the               society.     What    we    have,    therefore,               concomitantly  with our conception of  society               in  revolution is a conception of law  itself,               as being in a condition of flux, of  movement.               On this view, law is not a frozen, static body               of rules but rules in a continuous process  of               change  and adaptation and the judge,  at  the               final  appellate  level  anyway,  is  a  part-               determinant  part-of this dynamic  process  of               legal evolution." Canadian Bar Review (Vol. 45) 1967, 582-583. 308 This  approach  must inform Indian law,  including  contempt law. It is very necessary to remember the legal transformation in our Devalue system on the inauguration of the  Constitution, and  the  dogmas of the quiet past must  change  with  the

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challenges  of  the  stormy present.   The  great  words  of Justice   Homles  uttered  in  a  different   context   bear repetition in this context :               "But  when  men have realized  that  time  has               upset  many fighting faiths, they may come  to               believe even more than they believe the,  very               foundations  of  their own  conduct  that  the               ultimate  good  desired is better  reached  by               free  trade  in ideas-that the  best  test  of               truth  is  the  power of the  thought  to  get               itself  accepted  in the  competition  of  the               market, and that truth is the only ground upon               which their wishes safely can be carried  out.               That,  at  any  rate, is  the  theory  of  our               Constitution.   It  is an experiment,  as  all               life  is  an experiment.  Every year,  if  not               every day, we have to wager our salvation upon               some prophecy based upon imperfect  knowledge.               While that experiment is part of our system  I               think that we should be eternally vigilant  it               against  attempts to check the  expression  of               opinions  that  we loathe and  believe  to  be               fraught with death, unless they so  imminently               threaten   immediate  interference  with   the               lawful  and pressing purposes of the law  that               an  immediate  check is required to  save  the               country."(1) Before, stating the principles of law bearing on the  facets of  contempt of court raised in this case we would  like  to underscore  the  need  to ,draw the lines  clear  enough  to create  confidence  in  the people  that  this  ancient  and inherent power, intended to preserve the faith of the public in public justice, will not be so used as to provoke  public hostility  as  overtook  the  Star  Chamber.   A  vague  and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a  law which  makes it a crime to publish regardless of  truth  and public good and permits a process of brevity conviction, may unwittingly  trendiness  upon  civil liberties  and  so  the special  jurisdiction and jurisprudence bearing on  contempt power must be delineated with deliberation and operated with serious circus section by the higher judicial echelons.   So it  is that as the palladium ,of our freedoms,  the  Supreme Court  and  the High Courts, must  vigilantly  protect  free speech  even against judicial umbrage-a delicate but  sacred duty  whose discharge demands tolerance and detachment of  a high order. The  present  proceedings challenge, the projection  of  the power to punish for contempt into administrative domains  of the  Court  and  its extension  to  statements  in  remedial proceedings.   One recalls the observations of the  American Supreme Court:(2) "Contempt  of  Court  is the Proteus of  the  Legal  World,. assuming an almost infinite diversity of forms. (1)  The  Suprem-  Court and Civil Liberties by 03m  3nd  K. Fracknel-Published for the American Civil Liberties Union in its  40th anniversaries year-Pornea Publications, Inc.   New York (1960)page 40, (2)  Moskovitz, Contempt of Injunctions, Criminal and Civil, 43 Colum.  L. Rev. 780 (1943).  309 Considerations  such  as  we have  silhouetted  led  to  the enactment  of the Contempt of Court Act, 1971,  which  makes some  restrictive  departures from the traditional  law  and implies  some wholesome principles which serve  as  unspoken

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guidelines  in this branch of law.  Section 5 protects  fair comment  on the merits of, cases finally decided, and s.  13 absolves  from sentence all contempt which do  not  substan- tially interfere or tend substantially to interfere with the due  course  of  justice.   Statements  which  disparage   a subordinate judicial officer presiding over a court are  not contempt  if  made in good faith to the High  Court  or  any other   lower   Court  to  which  the  offended   judge   is subordinate.  The emphasis in s. 2(o), s. 3 and s. 13 to the interference  with the course of justice or  obstruction  of the  administration of justice or scandalising  or  lowering the  authority of the Court-not the  judge-- highlights  the judicial  area as entitled to inviolability. and suggests  a functional   rather  than  a  personal  or   ’institutional’ ’immunity.   The  unique  power to punish  for  contempt  of itself inheres in a Court qua Court in its essential role of dispenser  of  public  justice.   The  phraseological  image projected by the catenate of expressions like court,  course of  justice  administration of justice, civil  and  criminal proceedings,  judicial   proceedings, merits  of  any  case, presiding officer of the Court, judicial  proceeding  before a court sitting in chamber or in camera undertaking given to a  court,  substantial interference with the due  course  of justice,  etc.,   occurring in the various sections  of  the Act,  the very conspirator of the statutory  provisions  and the ethos and raison d’etre of the jurisdiction persuade  us to  the  conclusion that the text of the Act must  take  its colour  from the general context and confine  the,  contempt power  to  the  judicial-cum-para-judicial  areas  including those administrative functions as are intimately  associated with the exercise of judicial power.               What then is a Court ? It is               "an  agency  of the sovereign  created  by  it               directly  or indirectly under  its  authority,               consisting   of.   one   or   more   officers,               established and maintained for the purposes of               hearing and determining issues of law and fact               regarding legal rights and alleged  violations               thereof, and of applying the sanctions of  the               law, authorised to exercise its powers in  due               course  of law at times and places  previously               determined  by lawful authority.   Isbill  v..               Stovall,  Rex.   Civ.  App. 92 S.W.  2d  1057,               1070."               "...  An organised body with  defined  powers,               meeting  at certain times and places for  the,               hearing  and  decision  of  causes  and  other               matters brought before it, and aided in  this,               its  proper business, by its proper  officers,               viz.,  attorneys  and counsel to  present  and               manage  the  business, clerks  to  record  and               attest its acts and decisions, and ministerial               officers  to execute its commands, and  secure               due  order  in  its  proceedings.   Ex   parte               Gardner,,  22 Nev. 280, 39 p. 570: Hertman  v.               Hertman 104 Cr. 423, 208 P. 580, 582."(1). In  short the accent is on the functional personality  which is  pivotal  to  securing justice  to  the  people.   Purely administrative acts, Black’s Law Dictionary, Fourth Edu. 425. 310 like   recruitments,   transfers   and   postings,   routine disciplinary  action  against subordinate  staff,  executive acts  in running the establishment and ministerial  business ancillary   to  office-keeping  these  are  common  to   all

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departments  in  the public sector and merely  because  they relate  to  the judicial wing of government cannot  enjoy  a higher  immunity  from criticism.  The quintessence  of  the contempt  power  is protection of the public,  not  judicial personnel.   Excerpts from a few Anglo American  authorities will attest our standpoint               "The object of the discipline enforced by  the               Court in, case of contempt of Court is not  to               vindicate  the  dignity of the  Court  or  the               person  of  the Judge, but  to  prevent  undue               interference   with  the   administration   of               justice." [Bowen, L.J.Helmore v. Smith  (1887)               35 Ch.  D. 449, 455]               "The  law  of  contempt is not  made  for  the               protection  of judges who may be sensitive  to               the  winds  of  public  opinion.   Judges  are               supposed  to  be  men of  fortitude,  able  to               thrive  in  a hardy  climate.   "[Douglas,  J.               Craig v. Harney [331 U.S. 367, 376 (1947)].               Judges as persons, or courts as  institutions,               are  entitled  to no  greater  immunity  from-               criticism than other persons or  institutions.               Just  because the holders of  judicial  office               are  identified with the interests of  justice               they  may forget their common human  frailties               and fallibilities.  There have sometimes  been               martinets  upon the bench as there  have  also               been  pompous wielders of authority  who  have               used the paraphernalia of power in support  of               what  they called their  dignity.   Therefore,               judges  must  I  be  kept  mindful  of   their               limitations   and   their   ultimate    public               responsibility   by  a  vigorous   stream   of               criticism   expressed_with   candor    however               blunt.,    [Frankfurter,   J.,   Bridges    v.               California (314 U.S. 252, 289 (1941)] If  we accept this slant on judicialisation as a  functional limitation on the contempt jurisdiction we mutt exclude from its  ambit interference with purely administrative  acts  of courts and non-judicial functions of judges.  This dichotomy is  implicit in the decided cases although the  twilight  of the law blurs the dividing lines now and then.  To cast  the net wider is unreasonable and unwarranted by precedent.   To treat,   as  the  High  Court  has  done,  "the  image   and personality  of the High Court as an integrated one  and  to hold  that every shadow that darkness it is contempt  is  to forget life, reason and political progress.  For, if a judge has an integrated personality and his *He openly accuses him of  neglect  or  worse,  she  would  certainly  reduce   the confidence  of  the  public  in  him  as  judge    Will   her accusation  be personalised contempt?  If a judge  expresses on  a platform crude views on moral lapses and  is  severely criticized in public for it, it will undoubtedly debunk  him as a judge.  Will such censure be branded contempt?  311 As  early  as  1892, the Privy Council in The  matter  of  a Special  Reference from the Bahama Islands() bad to upset  a sentence  of  indefinite imprisonment imposed by  the  Chief Justice of Bahmas on one Mr. Moseley for two ’letters to the editor’ fun of snub and sarcasm about Yelverton, Esq., Chief Justice.  In these there was cynical reference to the  Chief Justice’s  incompetence and imprudence, couched in  stinging satire.  The Judicial Committee held :               "(a) That the letter signed "Colonist" in  The               Nassau Guardian though it might have been made

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             the subject of proceedings for libel was  not,               in  the circumstances, calculated to  obstruct               or interfere with the course of justice or the               due  administration of the law, and  therefore               did not constitute a contempt of Court."               The Attorney-General struck a sound note  when               in  the course of the arguments he  summed  up               the law thus               "A  libel  upon  a judge, holding  him  up  to               contempt  and ridicule in his character  as  a               judge, so as to lower him in the estimation of               the public amongst whom be exercises office is               a contempt of court." (emphasis supplied) Lord Atkin, in the celebrated case of Debi Prasad Sharma  v. The King-Emperor(2) where the printer, publisher and  editor of the: Hindustan Times were found guilty of contempt by the Allahabad  High Court for criticising the Chief  Justice  by falsely  imputing  to him a circular  communication  to  the subordinate judiciary to raise collections for the war fund, set  asida  the conviction holding that the  proceedings  in contempt were misconceived, The learned Law Lord observed               "When  the comment in question in the  present               case is examined it is found that there is  no               criticism  of  any judicial act of  the  Chief               Justice,  or any imptitation on him  for  any-               thing done or omitted to be done by him in the               administration  of justice.  It can hardly  be               said that there is any criticism of him in his               administrative capacity, for, as far as  their               Lordships    have    been    informed,     the               administrative  control  of  the   subordinate               courts  of’  the  Province,  whatever  is,  is               exercised,  not by the Chief Justice,  but  by               the   court  over  which  he  presides.    The               appellants   are  not  charged   with   saying               anything in contempt of the subordinate courts               or the administration of justice by them.   In               truth, the, Chief Justice is alleged,  unruly,               as Is now admitted, to have committed an  ill-               advised  act  in writing to  his  subordinate,               judges   asking  (as  the  news  item   says),               enjoining  (as  the  comment  says)  them   to               collect  fog the War Fund.  If the facts  were               as  alleged they admitted, of  criticism.   No               doubt it is galling for any judicial personato               be   criticised   publicly  as   having   done               something         outsidethis        judicial               proceedings     which   was   ill-advised   or               indiscreet.But judicial personages  can               afford not to be too sensitive.simple               denial in public               (1) [1893] A.C. 139,.149.               (2) (1942) 70 I.A. 216.               8-522SCI)74               31 2               of  the  alleged request would  at  once  have               allayed the trouble.  If a judge is defamed in               such a way as not to affect the administration               of  justice he has the ordinary  remedies  for               defamation  if he should feel impelled to  use               them." The whole emphasis and ratio of the decision consists in the impugned editorial not being an attack on the administration of  justice  and, therefore, not amounting  to  contempt  of court.   The learned Additional Solicitor General,  however,

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stressed the significance of the passing observation made in the   judgment  that  the  administrative  control  of   the subordinate judiciary vested in the whole court and not only in  the Chief Justice, and argued that by implication  their Lordships  must be deemed to have regarded animadversion  on even acts of administrative control as potential prey to the contempt law.  An obscure reference to the Chief Justice not being  even the exclusive administrative authority over  the lower judiciary, meant perhaps to bring into bold relief the irrelevance  of  the  criticism as reflecting  even  on  the executive   functions  of  the  Chief  Justice,  cannot   be considered  to reach a reverse result, ignoring the  setting and the thrust of the whole dictum. A  Division  Bench  of the Kerala  High  Court,  in  Kaviath Damodaran  v.   Induchoodan(1),  has relied  on  this  Privy Council ruling for the proposition that administrative  acts of  the  court-in  that case the transfer  of  a  Magistrate criticised as promoted by extraneous pressure-was not a  fit subject  for punitive action. (In that case, of course,  the contemnor was convicted for another publication).  The  deep concern of the law of contempt is to inhibit sullying essays on the administration of justice in which the public have  a vital interest and not to warn off or victimise  criticisms, just or unjust, of judges as citizens, administrators,  non- judicial authorities, etc. K.L.  Gauba’S(2) case was naturally pressed into  service at the Bar against the contemnor but such an extreme case of wild and vicious attacks on the Chief Justice rarely  serves in  the  search  for any abiding  principle  in  an  excited setting.    That  ruling  reminds  us  that,  whatever   the provocation, a Judge by reason of his office, has to halt at the  gates of controversy but as enlightenment  spreads  and public opinion ripens this judicial self-abbegation will’ be appreciated  better.  and not "embolden  the  licentious  to trample  upon everything sacred in society and to  overthrow those institutions which ’have hitherto been deemed the best guardians  of civil liberty." Again, while Young,  C.J.,  in that  case  rules  out the tenability of truth  as  a  valid defence  against contempt, action, we observe,  not  without pertinence in the constitutional context of restrictions  on free expression having to be reasonable, that in most of the reported cases courts have hastened to hold the  imputations false before proceeding to punish.  Contempt is no cover for a  guilty  judge to get away with it but  a  shield  against attacks on public. justice.  Gauba’s case, on the facts, was a  mud-slinging episode on the judicial target  as  such-and the  conviction accords with the policy of the law  we  have set out. (1) A.I.R. 1961 Kerala 321. (2) I.L.R. [1942] Lah. 411, 419. 313 A Division Bench of the Allahabad High Court, in Rex. v.  D. S.  Nayyar,(1)  had  to  deal with  a  representation  by  a litigant  against  a  magistrate with reference  to  a  case adversely  decided,  and  Kidwai, J.  cleared  the  confused ground right in the beginning by observing :               "The  first  thing to be  remembered  is  that               Courts are not concerned with contempt of  any               authority except Courts of law in the exercise               of   their  judicial  functions.   Thus,   any               speech, writing or act which does  not  have               the,  effect of interfering with the  exercise               of  their  judicial functions  by  the  Courts               cannot  be  the  subject  of  proceedings   in               contempt.   In  India  very  often  the  same-

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             officers   exercise  executive.  as  well   as               judicial  functions.   Sometimes  it   becomes               difficult to draw a distinction between  their               two capacities but nevertheless a  distinction               must be drawn and it is only if the  criticism               is  of  judicial acts that action  by  way               of proceedings in contempt may be taken."- A letter to the President of the Congress party  complaining about  the  appointment of. a judicial officer who  was  the brothirin  law  of  the, Private Secretary  of  a  ’Minister (belonging  to that party) and of the transfer of  cases  to his Court where in Congressmen were involved, was sought  to be  punished  as  contempt of court.  Kidwai,  J,  made  the following useful remarks exonerating the contemnor :               "In  this  passage also the attack is  on  the               appointment  of the judicial officer  and  the               transfer  of,  cases to him but  there  is  no               attack  upon the officer himself.  Both  these               attacks  are upon the system and not upon  any               Magistrate  in respect of the  performance  by               him  of his judicial functions.  They wish  to               see,  laid down a salutary principle by  which               Justice  should  not only be done  but  should               also-appear to be done.  There is no  contempt               of  Court in this-rather it is an endeavor  to               free  Courts from all extraneous shackles  and                             proceedings to contempt are wholly unc alled for               ’ The  Judicial  Committee in In re.  S. B.  Sarbadhicary  (2) considered  the misconduct of a barrister for publishing  an article  where  he  cast  reflections  upon  judges  of  the Allahabad,  High Court.  The merits of the case  apart,  the Judicial  Committee emphasized the judicial capacity of  the judges  which  attracted  the  contempt  jurisdiction.   Sir Andrew Seoble observed :               "There  is  no  doubt  that  the  article   in               question was a libel reflecting not only  upon               Richards  J..  but other judges  of  the  High               Court  in  their  judicial  capacity  and   in               reference to their conduct in the discharge of               their public duties." (emphasis added) "The public duty" in their "judicial capacity" was obviously in  contradistinction  to  merely  personal  activities   or administrative  function It is not as if a judge doing  some non-judicial public  duty is protected from  criticism  in which  case, any action by him as of Law or  Vice-chancellor in a University or as Acting Governor or President (1)A.I.R.1950 All. 549 ,551,555. (2) (1906) 34 XX I A. 14. 314 or  Member  of the Law or Finance Commission would  also  be punishable,  as contempt.  The basic public duty of a  judge in  his judicial capacity is to dispense public  justice  in court  and anyone who obstructs or interferes in  this  area does  so  at  his peril.  Likewise,  personal  behaviour  of judicial   personnel,   if  criticized  severely   or   even sinisterly, cannot be countered by the weapon of contempt of court,  for to use the language of Mukherjee, J.  in  Brahma Prakash Sharma v. State of Uttar Pradesh,(1) "the object  of contempt  proceedings is not to afford protection to  Judges personally from imputations to which they may be exposed  as individuals" (emphasis added).  Otherwise, a grocer who sues a  judge  for  price of goods with an  imputation  that  the defendant has falsely and maliciously refused to honour  the

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claim,   or  a  servant  of  a  judge  who  makes   personal allegations  of misconduct against his master may be  hauled up  for contempt.  This is no amulet worn by judges for  all purposes.  "The punishment is inflicted not for the, purpose of protecting either the Court as a whole or the  individual judges of the Court from a repetition of the attack, but  of protecting  the  public,  and especially  those  who  either voluntarily or by compulsion are subject to the jurisdiction of  the  Court,  from the mischief they will  incur  if  the authority of the Tribunal is undermined or impaired."  (Vide para  9, Halsbury’s Laws of England, 3rd Edn.  Vol.   VIII). Indeed,  if  we peer through the mists of  English  Judicial history,  Courts of record were not qua such courts,  acting in  any administrative capacities.  How then could  contempt action, going by genesis, be warranted purely administrative matters of courts. Of course, there have ’been cases sounding a different note. In  State v.H. Nagamani, (2) one Mr. Nagamani, an  impetuous I.A.S.  officer,  wrote a letter making critical  I  remarks couched  in  disrespectful and improper language  about  the inspection report of his court by a Judge of the High  Court of  Patna.   However, Mr. Nagamani tendered  an  unqualified apology and the court discharged the rule for contempt since in  their view the contempt was purged by the  apology.   Of course, there was no need to consider in detail whether  the letter reflecting upon the Judge who held the inspection was contempt;  it Was treated as such and the apology  accepted. And the High Court’s inspection of the judicial work of  the sub-ordinate judiciary is a judicial function or is at least para-judicial.   The Allahabad High Court punished the  late Shri C. Y. Chintamani and, Shri K D. Malaviya for publishing a  criticism to- the effect that  comparatively  undeserving lawyers  were  being frequently raised to  the  Bench.   The Court held them guilty of contempt holding the criticism  of the  judges as a vicious reflection and a case of  Contempt. [sea   In  the  matter  of  an  Advocate  of   Allahabad(3), Borderline  cases draw up to the pneumbra of law and  cannot light up dark comers. The learned Additional Solicitor General, in an endeavour to expand the meaning of "administration of justice" so to rope in  criticisms  of  executive  acts  of  judges,  drew   out attention to arts.  ’225, 227 and 235, and the provisions of earlier Government of India Acts (c.f. sec. 224(1) 1935 Act) which vest the Power to appoint the staff and do (1) [1953] S.C.R, 1169. (2) A.I.R. 1959 Pat. 373 (3) A.I.R. 1935 AU. 1. 315 other incidental management functions, in the High Court  as part  of the administration of justice.  Several High  Court Acts  clothe Chief Justices with administrative  powers  and Civil  Courts  Acts and Letters Patents charge  judges  with administrative    duties   the,,   goal   being    effective administration of justice.  If the appointment of clerks  is part  of the administration of justice, denunciation of  the judges  in these acts interferes with the administration  of justice,  liable to be visited with punishment.  This  means that if a judge in charge of appointments chooses  relations or unqualified men or takes other consideration, the  public must hold its tongue on pain of contempt.  The paramount but restrictive  jurisdiction  to  protect  the  public  against substantial  interference with the stream of justice  cannot be  polluted or diffused into an intimidator power  for  the judges  to  strike at adverse  comments  on  administrative, legislative  (as  under arts. 225, 226 and 227)  and  extra-

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judicial  acts.   Commonsense and  principle  can  certainly accept  a  valid administrative area so  closely  integrated with  court  work as to be stamped with  judicial  character such as constitution of benches, transfer of cases, issue of administrative  directions regarding submission of  findings or  disposal of cases by subordinate courts, supervision  of judicial  work-  of subordinate courts and  the  like.   Not everything covered by art. 225, 227 and 235 will be of  this texture.  To overkill is to undermine-in the long run. We  may now sum up.  Judges and Courts have diverse  duties. But  functionally, historically and  jurisprudentially,  the value which is dear 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 countervailing  good, not merely of free speech but also  of greater  faith generated by exposure to the acting light  of bona fide, even if marginally overzealous, criticism  cannot be overlooked.  Justice is no cloistered virtue. The  first  part  of the present case  directly  raises  the question  whether  statements  made  in  an  appeal  to  the Governor  against  an  order  of  the  High  Court  on   the administrative side attracts the contempt law.  To our  mind the answer arises from another question.  Is the  suspension of the District Judge so woven into and integrally connected with  the administration of justice that it can be  regarded as  not  purely an administrative act  but  a  para-judicial function  ?  The answer must, on the facts here, be  in  the affirmative.   "he appeal was against the  suspension  which was a preliminary to contemplated disciplinary action.  What was  that  action  about  ? Against  the  appellant  in  his judicial  capacity,  for acts of judicial  misconduct.   The control  was. therefore, judicial and. hence  the  unbridled attack  on  the High Court for the step  was  punishable  as contempt.  A large margin must be allowed for allegations in remedial  representations  but  extravagance  forfeits’  the protection of good faith.  In this case reckless excess  has vitiated what otherwise could have been legitimate grievance at  least  in one flagrant instance, the others  being  less clear.  One of the 316 grounds  for taking disciplinary action’ was based on    the disposal  of a civil appeal by the contemnor  as  Additional District Judge. lie heard it, delivered judgment  dismissing the  appeal signed the order sheet and judgment  and  sealed the  judgment.  Later in the day, the contemnor  scored  off his signatures in the order sheet and judgment, and returned the  record  to the principal District  Judge  for  disposal falsely  stating that the judgment had not been delivered. The  High  took  the  view  that  this  action  was  without jurisdiction  and  revealed  utter disregard  of  truth  and procedure  deserving  disciplinary action.   Obviously,  the impugned conduct of the contemnor was qua judge and the evil criticism was of a supervisory act of the High Court and the critic would-and should-necessarily ’court contempt  action. And   in  his  memorandum  of  appeal  the  contemnor   used expressions like ’mala-fides’ and ’subterfuge’ without  good faith,  and in such a case no shelter can be sought  in  the alibi of ’administrative act.’ The  second  part  of the charge  relates  to  objectionable statements  in  the special leave petition  to  this  Court. Ordinarily  they  must be out of bounds  for,  the  contempt power;  for, fearless seeking of justice will  otherwise  be stifled.

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In  State’  of  Uttar  Pradesh v. Shyam  Sunder  Lal  (1)  a complaint  about  the  conduct of a judicial  officer  in  a petition  to the Prime Minister was held not  to  constitute contempt.   The  representation was forwarded by  the  Prime Minister’s  office  to  the Chief  Secretary  from  whom  it reached the District Magistrate.  Certainly there was there- fore  sufficient,  publication in the law of libel  but  the Court held               "A  letter sent to the Prime Minister and  not               intended to be broadcast to the public or  any               section   of  the  public  cannot  create   an               apprehension  in  the  mind  of  public   ....               regarding  the integrity, ability or  fairness               of the judge-" Similarly,  in  Rex..  v.  R.  S.  Nayyar,  "(2)  the  court considered a representation made to the Premier of the State about  a judicial officer and also to the President  of  the All India Congress Committee.  The Court took the view  that such  complaints  may  be addressed  to  the  Premier  about judicial officers since Government had to consider under the then  rules  the conduct of judicial personnel.   "If  these complaints are genuine and are made in a proper manner  with the object of obtaining redress, and are not made mala  fide with  a view either to exert pressure upon the Court in  the exercise  of  its  judicial functions  or  to  diminish  the authority of the Court by lvilifying it, it would not be  in furtherance  of justice to stifle them by means  of  summary action  for  contempt, but rather  the  reverse"  _(emphasis added).   A pregnant observation made by the Court  deserves mention               "It  would indeed be extraordinary if the  law               should provide a remedy-the conduct of eve’  a               member of the highest Judicial Tribunal in the               exercise  of  his judicial office may  be  the               subject of enquiry with a view to see  whether               he is fit to continue to hold that  office-and               yet   no  one  should  be  able  to   initiate               proceedings for an enquiry by a complaint               (1) A.I.R. 1954 All 308.                (2) A.I.R. 1950 All. 549: 554.               317               to  the appropriate authority by reason  of  a               fear of being punished for contempt, and I can               find no justification for this view." At this stage it must be noticed that in the State of Madhya Pradesh v. Ravi Shanker(1) this Court ruled that  aspersions of a serious nature made against a Magistrate in a  transfer petition  could be punishable as a contempt if made  without good   faith.    However,  in  Govind  Ram   v.   State   of Maharashtra,(2)  this  Court reviewed the decisions  on  the point  and  ruled  that  if  in  the  garb  of  a   transfer application scurrilous attacks were made on a court imputing improper motives to the Judge there may still be contempt of court,  although  the court referred with  approval  to  the ruling  in  Swarnamayi  Panigrahi  v.  B.  Nayak(3)  that  a latitudinarian   approach   was  permissible   in   transfer applications.   The  core  of  the  pronouncement  is   that permission  remedial  process like  a  transfer  application cannot be a mask to malign a judge, a certain generosity  or indulgence  is  justified  in  evaluating  the   allegations against  the  judge.  Eventually, Grover J., held  that  the allegations  made  in the proceeding in  question  were  not sufficiently  serious  to constitute  contempt.   A  liberal margin  is permissible in such cases but batting within  the crease  and  observing  the  rules of  the  game  are  still

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necessary.  Irrelevant or unvarnished imputations under  the pretext  of  grounds  of  appeal amount  to  foul  play  and perversion  of  legal process.  Here, the author,  a  senior judicial officer who professionally weighs his thoughts and words, has no justification for the immoderate abuse he  has resorted to. In this sector even truth is no defence, as  in the  case  of criminal insult-in the latter because  it  May Produce  violent  breaches and is forbidden in the  name  of public  peace, and in the former because it may  demoralise, the community about courts and is forbidden in the interests of public justice as contempt of court. Even  so,  if  judges have frailities- 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   reforms initiated through constructive criticism, the contempt power should  not be an interdict.  AR this, far from  undermining the confidence of the public in courts, enhances it and,  in the  last  analysis, cannot be  recessed  by  indiscriminate resort  to  contempt  power.   Even  bodies  like  the   Law Commission or the’ Law Institute and researchers, legal  and sociological  may run risks because their professional  work sometimes involves unpastoral criticism of judges,  judicial processes  and the system itself and thus  hover  perilously around  the  periphery  of  the  law  it  widely  construed. Creative  legal  journalism and activist  statesmanship  for judicial  reform  cannot  be  jeopardised  by  an  undefined apprehension of contempt action. Even in England a refreshingly pro-free-speech approach  has been    latterly    adopted.     Any    episode    in    the administration  of  justice  may be  publicly  or  privately criti cised, provided that the criticism is fair- and (1) (1959) S.C.R. 1367. (2) [1972] 1 S.C.C. 740, (3)  A.I.R. 1959 Orissa 89. 318 temperate  and  made in good faith.  Lord  Denning,  in  the famous  Quintin Hogg case() laid down remarkable  guidelines in  the  matter of, actions for contempt.  The  learned  Law Lord said :               "It   is  a  jurisdiction  which   undoubtedly               belongs 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 resent 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               would ask is that those who criticise us  will               remember that, from the nature of our  office,               we cannot reply to their criticisms We  cannot               enter  into  public controversy.   Still  less               into  political controversy.  We must rely  on

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             our conduct itself to be its own vindication.               Exposed  as we are to the winds of  criticism,               nothing which is said by this person or  that,               nothing  which  is written by this  person  or               that, nothing which is written by this pen  or               that will deter us from doing what we  believe               is  right; nor, I would add, from saying  what               the  occasion  requires, provided that  it  is               pertinent  to the matter in hand.  Silence  is               not an option when things are ill done." This  Court  has  held that the law  of  contempt  is  valid notwithstanding art. 19(1).  The Contention was persisted in C.  K.  Daphtay v. O. P. Gupta. (2) This Court came  to  the conclusion  that  the  existing  law  of  contempt   imposes reasonable  restrictions within the meaning or  art.  19(2). "Apart  from  this,  the ’Constitution makes  this  Court  a gudian  of fundamental rights conferred by the  Constitution and  it  would not desire to enforce any law  which  imposes unreasonable  restrictions on the precious right of  freedom of  speech and expression guaranteed by  the  Constitution." (Sikri C.J.) The Court being the guardian of people’s rights, it has been held  repeatedly  that the contempt jurisdiction  should  be exercised  "with, scrupulous care and only when the cage  is clear and beyond reasonable doubt. (vide R. v. Gray) (s) (1)  (1968) 2 W.L.R. 1204 :1206-07. (2) All.R. 1971 S.C. 1132-1141, Para 52. (3) [1900] 2 O.B. 36.  319 The  policy  directive  can be gleaned from  the  ruling  in Special  Reference  No. 1 of 1964(1)  where  Gajendragadkar, C.J., speaking for the Court, observed :               "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               indiscriminate  use of this power in anger  or               irritation  would  not  help  to  sustain  the               dignity  or  status  of  the  court,  but  may               sometimes  affect it adversely.   Wise  Judges               never forget that the best way to sustain  the               dignity  and  status  of 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." If 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. To wind up, the key word is "justice", not "judge"; the key- note  thought is unobstructed public justice, not the  self- defence of a judge; the corner-stone of the contempt law  is the-accommodation of two constitutional values-the right  of free  speech  and  the right to  independent  justice.   The ignition of contempt action should be substantial land  mala fide  interference with fearless judicial action,  not  fair comment  or trivial reflections on the judicial process  and personnel. We have sought to set our legal sights in line with the  now constitutional  order  and endeavoured so to draw  the  grey contours  of  the  contempt law that  it  fulfils  its  high purpose  but the more.  We have tried to avoid  subjectivism in  the law, recognising by a re-statement, the  truth  that

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"the  great tides and currents which engulf the rest of  men do  not turn aside in their course and pass the  judges  by. (2) " The facts of the present case disclose that an  incorrigible contemnor,   who   had  made  it  almost   his   latter-,day professional  occupation to cross the High Courts path,  has come  to  this  Court  in appeal.   He  has  been  reckless, persistent  and  guilty  of  undermining  the  High  Court’s authority  in his intemperate averments in  both  petitions. But  having regard to the fact that he is a senior  judicial officer  who has at some stage in his career displayed  zeal and industry and is now in the (1)  [1965] 1 S.C.R. 413 ; 501. (2)  Benjamin N. Cardozo-The Nature of the Judicial Process- New Haven : Yale University Press-Page 163. 320 sombre evening of an official career, a punishment short  of imprisonment would have met the ends of justice and inspired in the public mind confidence in the justice  administration by  showing that even delinquent judges will be punished  if they play with or pervert the due course of justice, as  the contemnor  here has done.  A heavy hand is  wasted  severity where  a lighter sentence may serve as well.  A fine of  Rs. 1000/- with three months’ imprisonment in default of payment will meet the ends of justice and we impose this sentence in substitution  of the infliction of imprisonment by the  High Court.  With. this modification Civil Appeal No.. 41 of 1973 is dismissed.  On the appeal by the State the course adopted in the leading judgment of Palekar J. has our concurrence. Appeal No. 41 dismissed. P.B.R.         Appeal No. 77 allowed to be withdrawn. 3 2 1