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PETITIONER: C.   K. DAPHTARY & ORS.

       Vs.

RESPONDENT: O.   P. GUPTA & ORS.

DATE OF JUDGMENT19/03/1971

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) SHELAT, J.M. VAIDYIALINGAM, C.A. GROVER, A.N. RAY, A.N.

CITATION:  1971 AIR 1132            1971 SCR   76  1971 SCC  (1) 626  CITATOR INFO :  R          1974 SC 710  (88)  E&R        1978 SC 727  (45)  D          1988 SC1208  (38)  D          1989 SC 190  (13)  RF         1992 SC 904  (9,37)

ACT: Contempt  of  Court--Existing  law if  violates  freedom  of speech  under  Art. 19(1)(a)  of  Constitution--Evidence  to justify   allegations  amounting  to  contempt--If  can   be permitted--Scope  of  contents of petition and  evidence  of contempt  when  to  be  adduced--Contemnor’s  right  to  op- portunity--Scope  of--Delay  in filing petition,  what  is-- Right  of Attorney General and other members of Bar to  move for     contempt--Other     contemnors     if      necessary parties--Punishment. Constitution  of  India,  1950,  Art.  105--Publication   of pamphlet   prepared  for  impeachment   of   Judge--Pamphlet containing scurrilous attack on Judge--If protected by  Art. 105. Parliamentary  Proceedings (Protection of  Publication)  Act (24 of 1956), ss. 3 and 4--Scope of--If protect  publication of pamphlet constituting contempt of court.

HEADNOTE: The State of U. P. filed an appeal in this Court against the judgment,  of  the High Court holding the dismissal  of  the first respondent from service invalid.  The appeal was heard by  two Judges of this Court and the junior Judge  delivered judgment  on behalf of the Court, allowing the appeal.   The first respondent thereupon wrote, got printed and  published and circulated a pamphlet containing scurrilous criticism of the  senior  Judge using the word dishonest  judgment,  open dishonesty   deliberately   and   dishonestly   and    utter dishonesty.  He also stated in the pamphlet that the  senior Judge  cleverly  asked  the  junior  Judge  to  deliver  the judgment, and that the junior Judge toed his line by writing what  the senior Judge told him to write.  The President  of the  Bar  Association of the Supreme Court and  three  other

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Advocates  filed a petition supported by the  affidavits  of the  advocates, about 4 months after the circulation of  the pamphlet, for committing the firs respondent and the printer and publisher of the pamphlet for contempt of court. The  first respondent deliberately avoided service till  the senior  Judge  retired and then filed  a  counter  affidavit containing an unconditional apology and fresh abuses of  the senior Judge. HELD:     (1) Under Art. 129 of the Constitution this  Court has  the power to punish for contempt of itself,  and  under Art. 143(2) it can investigate any such contempt. [98A-B] The   Constitution   makes  this  Court  the   guardian   of fundamental  rights and hence it would not enforce  any  law which  imposes  unreasonable restrictions  on  the  precious right of freedom of speech. [92D-E] Under the existing law of contempt of court any  publication which  is  calculated to interfere with the  due  course  of justice or proper administration of law by this Court  would amount to contempt of court.  A                              77 scrurrilous  attack on a Judge, in respect of a judgment  or past  conduct  has in our country the inevitable  effect  of undermining  the confidence of the public in the  Judiciary; and  if  confidence  in  Judiciary  goes  administration  of justice definitely suffers. [97C-E] Therefore,  assuming Art. 19(2) applies to the existing  law of  contempt  the  restrictions on  freedom  of  speech  are reasonable and are in public interest [97B] Perspective  Publications  Ltd.  v.  State  of  Maharashtra, [1969]  2 S.C.R. 779, 791, 792 and R. C. Cooper v. Union  of India, [1970] 2 S.C.C. 298, 301, followed. Legal Remembrancer v. B. B. Das Gupta, [1953] I.L.R. 32 Pat. 1069,  1091.  Lakhan Singh v. Balbir Singh, I.L.R. [1953]  1 All  796, and State v Vikar Ahmed, I.L.R. [1954]  Hyd.  270, 278, approved. (2)  The  pamphlet  in the present case, read  as  a  whole, constituted gross contempt of this Court. [98F] The  first respondent admitted that he assisted in  drafting an  impeachment  motion  against  the  senior  Judge.    The pamphlet  was  ostensibly  prepared for  that  purpose.   He therefore  used the word dishonest in the pamphlet in  order to bring the allegations against the senior Judge within the word misbehaviour in Art. 124(4), and not, with the  special sense  or meaning that the Judge committed errors;  because, even  gross  errors cannot amount to misbehaviour.   To  say that the junior Judge toed the line and surrendered his  own judgment  in  deference to or to the  dictation  of  another Judge is flagrant contempt.  The first respondent’s  apology and  avowed respect for the junior Judge were not  genuinely intended. [99A; 101G; 104E] In re Moti  Lal Ghose, [1918] I.L.R. Cal. 169, 182,  Emperor v.  Marmadule  Pakhall, A.I.R. 1923 Bom. 8, 10  and  In  Re. Murli  Monohar  Prasad,  [1929]  I.L.R.  8  Pat.  323,  340, approved. (3)  Article 105(2) does not apply to the facts of the case. There  was  nothing  to establish  the  publication  of  the pamphlet  as  a  publication by or under  the  authority  of either House of Parliament, [102G; 104B] (4)  The    Parliamentary   Proceedings    (Protection    of Publication)   Act,  1956.  does  not  protect   the   first respondent,  because the protection of Ss. 3 and 4  of  that Act  is limited to newspapers or broadcasting agencies,  and that too provided the publication was in public interest and without  malice.  But in the present case,  the  publication was not in a newspaper. [102D, F 103F, H]

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(5)  In   the  pamphlet  the  judgment  was  criticized   as containing  errors  and dishonesty of the senior  Judge  was alleged.   No  evidence  to justify the  contempt  could  be allowed because, if such justification is allowed, the court hearing  the contempt application.,- will have to act as  an appellate  court,  which is not its function; and  it  would encourage  disappointed litigants to avenge their defeat  by abusing the Judge. [104H; 105A] In  the  matter of K. L. Gauba, [1942] I.L.R. 13  Lah.  411, approved. (6)  Notice  was issued to the respondents  and  opportunity was  given  to  them to file affidavits  stating  facts  and contentions  in  their  defence.   The  first   respondent’s request for adjournment of the ground that the advocates  he wanted  to  engage were engaged in  fighting  elections  was refused, because, 78 the  Court considered the request unreasonable and was  made with  a view to delay matters.  The  contemnors,  therefore, were  given  a  fair and reasonable  opportunity  to  defend themselves. [105E-F] (7)  Since  the  essential  facts stated  in  one  advocates affidavit  were  admitted by the first respondent,  and  the pamphlet and the affidavit of another advocate were  annexed to  prove  the facts, it was not necessary to  disclose  any further source of information. [106A, B-E] , (8)  All  affidavits were filed along with the petition  and the entire evidence of  the petitioners was  disclosed  with the initial petition. [106F] (9)  There  was no irrelevant material in the petition.   On the facts the charge against the first respondent was  quite clear  and  simple and it was not necessary  that  a  formal charge should have been drawn up by the petitioners or  this Court.  By setting out the extracts from the pamphlet point- ed  attention  had  been drawn to  the  offending  passages. [106G-H; 107D-D] Nagar  Mahapalika of the City of Kanpur v. Mohan Singh,  Cr. A. No. 27/1964 dt. 31-1-1966, referred to. (10) Whether  there  has  been  delay or  not  in  filing  a petition depends on the facts of a particular case.  In  the present case, after the first respondent distributed a  copy of the pamphlet in the Bar Association of the Supreme Court, the  petitioners  had  to  ascertain  facts  regarding   its publication,  printing etc.  Further the petitioners had  to take  steps only after the Attorney General did not move  in the matter. [108B-G] State  Government  Madhya Pradesh v.  Vinaya  Kumar,  A.I.R. [1952] Nag. 34, referred to. (11) It  is  not  the law, even in England,  that  only  the Attorney-General should move in contempt matters.   Besides, the  position  of an Attorney General in  England  is  quite different  from  that  of the  Attorney  General  in  India. Unlike  the Attorney General in India, he does not  have  to receive  instructions  from Government to  move  a  contempt petition.  Moreover, there is nothing in law which  prevents this  Court from entertaining a petition at the instance  of the President of the Supreme Court Bar Association and other Advocates of this Court, since the Bar is vitally  concerned in  the maintenance of the dignity of courts and the  proper administration of justice.  Further, this Court can issue  a notice suo mota. [109D-G] (12) There  was  no  allegation or proof  that  any  of  the signatories  of  the motion of  impeachment  circulated  the pamphlet  outside  Parliament,  and  hence,  there  was   no necessity  to  join them as parties.  Also,  the  fact  that

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those members of Parliament had not been made correspondents did   not  exonerate  the  first  respondent  or  make   his publication any the less contempt of court. [102C; 109G-H] (13) The  fact  that  the  first  respondent  filed  a  writ petition containing the substance of the impeachment  motion did  not  afford  a defence when he  committed  contempt  by circulating the pamphlet. [11OA-C] (14) Even  if  the senior Judge did not choose to  take  any action  for contempt when the allegations were  made  during the hearing of the appeal it was open to the petitioners  to initiate the proceedings. [110C-D] (15) There  was  no  substance in the  contention  that  the petition was filed with the object of protecting the  senior Judge  who was the first petitioner’s junior at the Bar  and friend  and  therefore  the filing of the  petition  with  a vengeful motive was itself contempt of court. [110D-F]                              79 (16) The pamphlet constituted gross contempt of   this Court. His  apology was no apology when it was coupled  with  fresh abuses of the senior Judge.  Therefore, he deserved a  heavy sentence,  but  since  such contempt$  of  this  Court  were happily  rare,  a  lenient  sentence  of  2  months   simple imprisonment should be imposed. [111OG; 111G-H] [Me Court however warned that any such future contempt  will not be dealt with so leniently.]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION Criminal Misc.  Petition No. 1259 of 1970. Petition  under  Article 129 of the  Constitution  of  India praying  for action being taken against the respondents  for the contempt of the Supreme Court. The petitioner appeared in person. Respondent No. 1 appeared in person. jagadish Swarup, Solicitor-General, V. A. Seyid Muhammad and S. P. Nayar, for the Union of India. Mela  Ram, one of the partners of respondent No. 2 was  also present in person. The Judgment of the Court was delivered by Sikri,  C.  J. This is a petition under Article 129  of  the Constitution of India by Shri C. K. Daphtary and three other advocates  bringing  to our notice the alleged  contempt  of this Court committed by the respondents (1) 0. P. Gupta, (2) Rising Sun Press, Delhi, through its proprietor, and (3) M/s Kanak Book Depot.  Respondent No. 3-Kanak Book Depot-has not been  traced.   Respondent No. 1, 0. P. Gupta,  appeared  in person,  and  the proprietor of the Rising Sun  Press,  Mela Ram, also appeared in person. In  the petition it is stated that Civil Appeal No. 1731  of 1967  was filed in this Court by the State of U. P.  against the  judgment  ,of the High Court of Allahabad  whereby  the High Court had held that the order of dismissal from service passed  against respondent No. 1, 0. P. Gupta, was  invalid. This appeal came up for hearing before this Court on various occasions and was ultimately heard by a Bench consisting  of Shah, J., as he then was, and Hegde, J., on October 15, 1969 and  October 16, 1969 (and, according to respondent  No.  1, also on October, 17, 1969).  It appears that the appeal  was first heard on February 22, 1969 by Hidayatullah, C. J., and another Hon’ble Judge, but later on it was heard, as already stated,  by  Shah  and  Hegde,  JJ,  and  the  judgment  was delivered on October 28, 1969 by Hegde, J.                              80

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It  is further stated in the petition that respondent No.  1 "with  the deliberate design of bringing into disrepute  and scandalizing  this Hon’ble Court, wrote and got printed  and published, by and through Respondent No. 2, a pamphlet which though ostensibly meant for the convenient use of members of Parliament  was  actually  widely circulated  and  was  made available for sale at M/s Kanak Book Depot, P. 0.  Ramsanehi Ghat,  Distt.   Barabanki, U. P., Respondent No. 3."  It  is also stated that "the said pamphlet was, as the  petitioners believe,  sold  or  offered  for  sale  to  the  public   by Respondent No. 3." It  is  further  stated in the petition  that  the  pamphlet "disparages  and brings into contempt the authority of  this Hon’ble  Court  and tends to weaken the  confidence  of  the people in it and in any event has the tendency and object of so  doing.  It is submitted that the pamphlet "by  attacking Hon’ble  Mr.  Justice  J. C. Shah and  Hon’ble  Mr.  Justice Hegde, while acting in their judicial capacity,  scandalizes and brings into disrepute this Hon’ble Court and is  clearly contempt of this Hon’ble Court." In para 7 of the petition certain passages from the pamphlet were extracted.  It is necessary to reproduce these paras in order  to  show  the nature and content  of  the  scandalous remarks made against Mr. Justice Shah and Mr. Justice Hegde.               "   Moreover,  having  wrongly  persisted   in               hearing the case, he delivered a  demonstrably               dishonest  judgment which cannot fail to  show               to  any discerning person that he did so  only               to  feed fat his prejudice and bias.   He  has               gone to the extent of writing total falsehoods               in  the, judgment in the defiant  belief  that               there is none to look into and scrutinize  his               judgments.   His action is highly  condemnable               and derogatory of a man in his position."               "As this enquiry proceeds, hundreds of similar               other  instances of his misbehavior are  bound               to  come to light, as he appears to be in  the               habit  of  being influenced  by  extrajudicial               considerations and of victimizing the disliked               party through dishonest means."               "In  view of the clear admission by the U.  P.               Government that the file had never gone to the               Governor  at all, there was nothing on  merits               for  that  Government to file  an  appeal  but               still the U. P. Government filed an appeal  in               the Supreme Court in the hope that they may be               able to influence the judgment and get a wrong               decision  in  their favour.  They  thought  of               Shri J. C. Shah, Judge of the Supreme Court in               this connection."                                     81               "So  even while the mater remained pending  in               the  High  Court  they moved  for  exparte  ad               interim  stay in the Supreme Court.  This  was               managed  to  be heard by Shri J. C.  Shah  and               another.  Shri J. C. Shah at once ordered stay               not  only of the balance decretal amount,  but               even of the Rs. 50,000 which had been received               by  Shri  0. P. Gupta  after  furnishing  full               security."               "The  Respondent’s counsel, Shri S. P.  Sinha,               argued  on  25th April 1,1966 from  11  a.m.to               11:40 a.m. Throughout these arguments Shri  J.               C.  Shah  made  such  extremely  unreasonable,               biased  and  illegal  observations  that   the

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             counsel  Shri S. P. Sinha had to give  up  the               arguments in disgust."               "Shri  O.  P.  Gupta went  back  to  Allahabad               greatly  perturbed  and  upset  at  such  open               dishonesty  of a Senior Judge of  the  highest               Court of Justice in the land".               "Whereas  in the Lok Sabha every word that  is               spoken  is written down, in the Supreme  Court               none  of  the  arguments  by  the  parties  or               observations by the Judge are noted.  This  is               the  reason  why Shri J. C.  Shah  makes  such               illegal  and dishonest observations orally  in               the   Court   in   the   belief   that   these               observations will not find place on the record               and nobody will be able to patch him."               "Note : Although both the Judges who delivered               this  judgment  are responsible  for  it,  the               responsibility of Shri J. C. Shah is much more               serious  as  he was the Senior Judge  and  had               been  specifically  charged  with  bias.   The               other Judge  merely toed  his  line.    His               cleverness  in getting the judgment  delivered               by his junior colleague will deceive no one."               "It  is not as if the judge has  missed  those               contentions through carelessness.  He has done               so  deliberately and dishonestly  because  the               High Court had emphasized this contention very               strongly and had given clear findings on it."               "It was only the height of dishonestly on  the               part  of  Shri  J. C. Shah to  ignore  and  go               against all law in this matter,"               "In view of all these binding rulings Shri  J.               C.   Shah  has  not  only  conducted   himself               dishonestly  in the above observation but  has               flouted  the  Constitution most  directly  and               want only to feed fat his bias."               "Further,  in  A. 1. R. 1961 S. C.  1070,  the               Supreme Court has emphatically laid down  that               admissions have to be taken as a whole.  It is               not possible for a judge to               6-1 S.C.India/71               82               take  a  few sentences here and there  from  a               statement  and  treat them  as  admission  and               ignore other sentences which explain those so-               called  admissions.   Only  a  dishonest   and               prejudicial Judge could have done this."               "In Para 9, Shri J. C. Shah himself says  that               one   of   the   essential   requirements   of               reasonable  opportunity  is that ’he  must  be               given  reasonable opportunity to  crossexamine               the  witnesses produced against him.   He  has               belied  his  own standard and shown  not  only               utter dishonesty but also a feeling that being               a Judge of the Supreme Court there is none who               can scrutinize his actions."               In  Para 8 of the petition it is  stated  that               petitioner No. 3, Shri S. N. Prasad, Advocate,               while  in Patna and Gauhati during the  summer               vacation,   was   asked  by   several   people               including some Judges of the High Court  about               the  said  pamphlet  and was  also  shown  the               pamphlet  for the first time in Patna.  It  is               further stated that petitioner No. 3 was  also               informed by one of the Chief Justices that the

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             said  pamphlet  had been sent to him.   It  is               submitted that "this makes it obvious that the               pamphlet had been very widely circulated."               Para 9 of the petition may be set out in full               "That soon after reopening of the Court  after               summer acation, Respondent No. 1 was found  in               the Bar Association room of the Supreme  Court               and was seen talking to some members.  Shri B.               P. Singh, Advocate, on spotting the Respondent               No.  1,  went  to the table at  which  he  was               sitting  with the intention of asking  him  to               leave the Bar Association room as he was not a               member.   On  reaching the table, Shri  B.  P.               Singh  found the Respondent No.  1  discussing               the  aforesaid  Pamphlet.  Shri  B.  P.  Singh               asked the Assistant Librarian of the Bar Asso-               ciation  to ask Respondent No. 1 to leave  the               Bar  Association room  immediately.   However,               before the Respondent No. 1 actually left  the               Bar  Association room, he sold a copy  of  the               said   Pamphlet  to  Shri  0.  N.   Mahindroo,               Advocate." In  Para 10 it is submitted that "from the  above  mentioned facts  it is clear that the Respondant No. 1 has  personally distributed  and  published the aforesaid pamphlet."  It  is further  stated in Para 1 1 that the pamphlet as a whole  is ex  facia contempt of Court and has the tendency and  object of bringing into disrepute the authority of the court and to weaken the confidence of the public in its justice and  fair play.                              83 it  is prayed in the petition that this Court be pleased  to issue  notice  to  the Respondents to show  cause  why  they should  not  be ,committed for contempt of  Court  and  upon hearing the Respondents (a) order attachment and  committal, (b) impose such other penalty as may be deemed fit, and  (c) pass such order or orders as this Court may think proper. Shri  S. N. Prasad,petitioner No. 3, has filed an  affidavit with  the  petition.  Shri B. P.  Singh,  Advocate,  Supreme Court, has also filed an affidavit.  In this affidavit it is stated,  "Sometimes after the reopening of the  Court  after the  summer vacations in July 1970, I saw Mr. 0.  P.  Gupta, moving  about  in  the Supreme  Court  Bar  Association.   I recognise  Mr.  0. P. Gupta, as I remember having  seen  him arguing his own case in the Supreme Court.  On that day  Mr. 0.  P. Gupta was carrying a bag with him and  was  aimlessly moving about within the Association’s premises." It is further stated in the affidavit :               "That Shri O. P. Gupta ultimately sat down  to               talk  to  some  of  the  members  of  the  Bar               Association   and  was   ,discussing   certain               matters   with  them.   Having   noticed   his               presence and having known that he had  printed               some   pamphlet  which   contains   scurrilous               remarks  against  some of the  Judges  of  the               Hon’ble  Court, I became suspicious as to  the               purpose of his visit to the Supreme Court  Bar               Association.  I, therefore, went to the  table               where  he  was sitting and found that  he  was               discussing the contents of his pamphlet which               he  chose to describe as a  "booklet".   Among               other   members   present  at  the   table   I               distinctly remember the presence of Shri 0. N.               Mahindroo.   I protested against the  presence               of  Shri 0. P. Gupta within the Supreme  Court

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             Bar  Association  premises as he  was  not  a.               member  of  the  Association..............  In               spite of my protest I found that Mr. Gupta had               no  intention of leaving the Bar  Association,               and 1, therefore, called Shri Gopi,  Assistant               Librarian and asked him to see to it that  Mr.               Gupta   left  the  Bar  Association   premises               immediately.   Thereafter Mr. Gupta agreed  to               leave the Association premises." It is further stated that "while he was leaving he collected a  few  copies  of the ’booklet’  which  he  had  circulated amongst  the members present there.  I  distinctly  remember that  Shri 0. N. Mahindroo asked for a copy of  the  booklet and  paid a sum of Re. I /  to Mr. 0. P. Gupta,  which  was the price demanded by Mr. Gupta for the booklet.  Thereafter Mr. Gupta was made to leave the association premises." An affidavit was also filed by Shri 0. N. Mahindroo.  It  is stated in the affidavit 84               "I have read the Affidavit of Mr.B. P.  Singh,               Advocate,  and I confirm what has been  stated               in  paras. 2 and 3 of his affidavit about  Mr.               O. P. Gupta and me.  I did pay him a Rupee  as               desired by Mr. Gupta for a copy of the booklet               as stated in para. 3 of the said affidavit." This  petition was called for hearing on November 23,  1970, and   upon  hearing  Nr.   C.  K.  Daphtary,  one   of   the petitioners,  the  Court directed issue of  notice  of  this petition  to  the  respondents  returnable  10  days  hence, peremptorily.  The office reported on December 3, 1970, that "neither  the Registered Cover nor A.D. Card in  respect  of notice issued directly to Respondent No. 1, viz.  Shri 0. P. Gupta has been received back so far.  Similarly no report in respect  of  Respondent  No. 1 has been  received  from  the District Judge, Allahabad." On December 4, 1970, this  Court directed that another notice be sent to respondents Nos.   1 and  3  returnable  on December 9,  1970.   It  was  further directed  that  notice be sent to respondent No.  1  at  his Delhi  address  also, returnable on December 9,  1970.   The notices were also directed to be served through the District Magistrates.  It may be mentioned that respondent No. 2  was present  in  Court and had filed an affidavit  to  which  we shall later refer. The Sub-Divisional Magistrate, Delhi, returned the notice in respect of 0. P. Gupta, unserved, with the following  report :               "The wife of the addressee, viz., Mrs. Mithles               Kumari,  who was present at the address  given               in the notice, has stated that her husband had               gone out to Poona.  She had no knowledge about               the return of her husband.  She did not inform               us about his address at Poona.               On  enquiries being made from Shri  Baij  Nath               Kureel,  resident of 69, South Avenue (M.   P.               flats)  he stated that he (Mr.   Gupta)  comes               and stays with him as a guest, off and on, and               he goes back.               Mr.  O.  P. Gupta is  deliberately  concealing               himself and is avoiding service of the notice.               Therefore,   the  notice  is  being   returned               unserved.   The writing of Mr.  O..P.  Gupta’s               wife is enclosed." As  regards  the  notice sent to 0. P.  Gupta,  through  the District  Magistrate,  Allahabad,  the  Additional  District Magistrate  who  was  contacted on Trunk  telephone  by  the

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Office  on December 8, 1970, reported that Gupta was  stated to  be  in Delhi and was staying at 69, South  Avenue.   The District  Judge  of Allahabad and  Barabanki  reported  that notices  could  not  be  served on 0. P.  Gupta  as  he  was reported to be in Delhi in connection with some case. 85 On  being satisfied on materials before it  that  respondent No.  1  was  deliberately avoiding  service,  the  Court  on December 9, 1970, directed issue of non-bailable warrant for the arrest of respondent No. 1 (wherever he may be in India) and  his  production  in  this Court  on  Monday,  the  14th December, 1970.  The Additional District Magistrate,  Delhi, thereupon submitted the following reports :               "The local police has informed us that despite               best of their efforts they have not been  able               to  arrest Shri 0. P. Gupta whose  whereabouts               in Delhi are not known.  However we are making               further  efforts to find out  his  whereabouts               and will be able to send you a final report on               Sunday  evening.  You may kindly inform  their               Lordships accordingly." On  December  10,  1970, 0. P. Gupta sent a  letter  to  the Registrar, giving his address "C/o Station Master, Jagannath Puri (Orissa)", stating that he had heard a rumor that  "the Hon’ble  Court  requires  my  presence  in  connection  with contempt of Court." He further stated that he was trying  to reach  Delhi  as  soon as possible in about  ten  days.   He requested  that the matter may be listed for his  appearance any  day in January 1971.  He gave a, firm undertaking  that he  would  present himself before the Court on the  day  the Court reopened after winter vacation.  On December 14,  1970 this Court ordered that the "warrant will remain outstanding returnable a day after the reopening of the Court in January 1971,  i.e. 5-1-1971".  On December 15, 1970,  referring  to the  letter of the respondent, mentioned above,  this  Court observed  that "the address given on the letter is  c/o  the Station Master, Jagannath Puri, Orissa.  This clearly  shows that  he  does not want to disclose his wherabouts  so  that proper processes may be issued to him...... In view of  this letter,  we  are further fortified in our view  that  he  is avoiding  service and concealing himself.  Warrants will  be executed as ordered by us." The office reported again on January 4, 1971 that the autho- rities had informed that despite their best efforts they had not  been  able to arrest 0. P. Gupta  nor  his  whereabouts could be found. Respondent No. 1 wrote another letter on December 24,  1970, objecting to the issue of non-bailable warrants.  He stated:               "As  written  in  my  previous  letter  I  had               planned  to  reach  Delhi by  about  the  20th               instant and to present myself in Court when it               reopens  on  4th January, 1971......  But  the               shocking  news of a non-bailable  warrant  has               upset all my plans." 86 He further stated that he had thus no alternative but to  go back; he wanted to reach the Court as a free man and  before appearing in Court he wished to get about two or three weeks time  for  medical  aid.  He,  therefore,  prayed  that  the warrant be withdrawn and the case fixed for Monday, the  1st February, 1971. On  January  5, 1971, this Court ordered that  "warrants  be executed  as  already  directed  by  this  Court.   District Magistrates  of Allahabad, Delhi and Barabanki  should  take immediate  action  with  the assistance of  the  Police,  to

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execute the warrants." On January 25, 1971, at last 0. P. Gupta appeared before the Court,  and this Court ordered that the "warrant  which  was ordered  to be issued against respondent No. 1 will  not  be executed on condition that he shall furnish a personal  bond in the sum of Rs. 5,000/-with a surety in the like amount to the satisfaction of the Registrar of this Court.  Respondent No. 1 will file affidavit in reply within a week from today. Liberty to the petitioners to file a rejoinder, if any.  The Petition  will  come up for hearing on  the  12th  February, 1971" On  January 28, 1971, respondent No. 1 filed an  application alleging that the petition for contempt was not maintainable and  deserved  to be dismissed without the  applicant  being called  upon  to  answer it on merits.   He  stated  various grounds  regarding the non-maintainability of the  petition. On  February  12, 1971, the Court adjourned  the  matter  to February 18, 1971, and respondent No. 1 was directed to file an affidavit on merits by February 16, 1971, which, however, he failed to do. On  February 22, 1971, respondent moved another  application praying  that  the  hearing of the  case  may  be  postponed because  he wanted to engage a counsel and counsel  whom  he wished to engage (M/s R. D. Bhandare, Mohan  Kumaramangalam, K. K. Nayar, D. L. Sen, etc.) were parliamentarians and they were extremely busy in their elections and could not come to Delhi before the middle of March, 1971. We  have given these facts in order to show that  respondent No. 1 was deliberately avoiding service for a long time.  We could  not at first understand his object in doing  so,  but during  the  course. of arguments the  object  became  quite clear.  Chief Justice Shah was due to retire on January  21, 1971 and if the respondent had made the affidavit, to  which we will presently refer to, before that date, it would  have amounted to contempt.  When it was pointed out to him during the course of hearing that he had abused Mr. Justice Shah in his affidavit he replied that it was not contempt because it was the law that there could not be any contempt in  respect of                              87 a Judge who has retired.  It seems to us clear that in order to  hurl fresh abuses on Mr. Justice Shah,  he  deliberately avoided  service of the notice so that he would not have  to file  his  affidavit before the date of  retirement  of  Mr. Justice Shah. We  are also surprised at the inability of the Executive  to have  O.  P.  Gupta  traced and  warrants  served.  on  him. Article   144  of  the  Constitution  provided  that   ".%II authorities, civil and judicial, in the territory of  India, shall act in aid of the Supreme Court." We have noticed with regret  that  in this case the Executive has not  shown  due diligence in complying with this constitutional provision. Respondent  No. 1 filed another application on February  18, 1971,  praying that the arguments on maintainability of  the petition  be heard first and that question decided.  It  was further  requested that the petitioners be asked to  produce all  their evidence because he would like  to  cross-examine them.  It was further stated that after the petitioners  had closed their evidence, he "will summon documentary and  oral evidence on his behalf, after which arguments may be heard." He  requested that the petitioners be asked to  produce  the "book" or the "pamphlet" from which they had copied annexure 1  to their petition.  It was suggested that it would  throw great light-on their allegations. We may mention that the pamphlet or the booklet was  annexed

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to the petition in original and we could not understand this prayer.   This  Court directed that the  petition  would  be heard on the affidavits already filed by the parties.  This Court  also informed respondent No. 1, that the  petitioners had no other evidence to lead. Respondent  No.  1  filed a  lengthy  counter  affidavit  on February  18, 1971.  He started with  tendering  unreserved, unqualified  and unconditional apology to this  Court.   He, however,  went on to state that in borderline cases  it  was permissible to make alternative and additional defence of no contempt  also  and  he therefore proceeded  to  submit  his defence. In  para  3  of the  counter-affidavit  he  maintained  that because of the many laches, illegalities and infirmities the petition should be dismissed.  In para 32 he stated that  "I am  not  at  this stage making  any  attempt  to  contradict evidence  given  or to give any evidence on my  side.   This will be done if and when the occasion arises or the  Hon’ble Court so orders.  I will have to summon some documents  also for  that purpose." This statement was made in spite of  the direction of this Court that he should file his affidavit on the merits.  Until now we have not been told what  documents or evidence he would have called, especially in view of  the admissions made by him, which we will presently refer to. 88 In para 4 he complained that he could not find the  specific charge.   We  had informed him that, in  brief,  the  charge against  him was that he had committed contempt of Court  by the  publication  and distribution of the  pamphlet  or  the booklet outside Parliament. in  para 5 he proceeded to assert that the petition was  not bona  fide  at  all.   He cast  asperisions  on  Mr.  C.  K. Daphtary,  who  is senior advocate of this  Court,  and  the President of the Supreme Court Bar Association.  We need not refer  to  these  because this is really  an  abuse  of  the process of this Court. In  para  8,  8.1, 8.2 and  8.3  the  respondent  complained against  the  language of the petition as  not  being  quite respectful  to  the Members of Parliament.  In para  8.4  he stated  that  "as  to facts I must frankly  admit  that  the grievous  wrong  that  Shri J. C. Shah had done  to  me  had created such deep anguish, frustration and desperation in me that had God almightily not intervened Shri J. C. Shah would not have seen the end of 1969." we wondered what exactly  he meant by this passage, but he admitted that it meant that he had  at  one time decided to murder Mr.  Justice  Shah.   He explained  that it was some Member of Parliament  who  saved him from this act by suggesting that he might instead try to convince the Members of Parliament of the genuineness of his case and prepare them to file an impeachment motion. In  para 8.5 it was stated that he had a right  to  approach and  convince  the  Hon’ble Members and  he  exercised  that right. Nobody has said before us that he had no  right  to approach and convince the Hon’ble Members. In para 8.6 and 8.7 he mentioned about the filing of the im- peachment  motion in the Lok Sabha on May 15, 1970  and  its rejection by the Hon’ble Speaker. In para 9 he said that "a large number of Hon’ble Members of Parliament  made  that draft, in the making of which  I  too took an active part and made my contribution." He  submitted that (he "drafting" of the motion could not be a charge.  We may  mention that he has not been charged with the  drafting of the motion. Regarding  the printing of the pamphlet, he stated in  para. 9.2 :

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             "The Impeachment Motion was printed by respon-               dent  No.  2  and  I went to  him  to  get  it               printed.   The printing was done under  orders               and at the instance of the signatories of  the               Motion.  There were 200 of them                                     89               and  they were anxious to have several  copies               each.   They had a right to have  the  copies.               It was impossible for them to have the  copies               without printing the motion.  It still possess               a  letter  from Hon’ble Shri  George  Famandes               asking’ for six copies which I sent to him  by               registered post." He submitted that the printing of the motion could not be  a charge against him and that "neither the Hon’ble Members who ordered the printing, nor I who got the work actually  done, nor respondent 2, who actually printed the motion are in any way guilty of contempt for that action.  We need not go into this submission as he was not being charged for printing  or assisting in the printing of the motion. In  para 9.3 he contended that the word" "pamphlet" for  the printing Impeachment Motion was highly condemnable.  In para 9.4  he stated that he never offered the book for  sale  nor did  he widely circulate it.  Further in para 9.5 he  stated that  the  "book given to Shri 0. N. Mahindroo,  from  which this  annexure must have been copied, was not a,  new  copy, but  was  a used one inasmuch as it  contained  several  red pencil  marks and pen writing in its body.  This  shows  and proves  that it was not given to him by way of sale  and  it was not being offered for sale in general." In  para 9.6 it was stated that annexure 1 to  the  petition was  nothing  but the Impeachment Montion filed in  the  Lok Sabha reproduced in a printed book. In  para  10 he submitted that para 6 of the  petition  "has needlessly  dragged in the fair name of Hon’ble Mr.  Justice Hegde   in   the  petitioner’s  wholesale   onslaught."   He submitted: Read the entire Impeachment Motion.  The name  of Hon’ble Mr. Justice Hegde does not occur even once  anywhere either  disparagingly  or otherwise.  I  have  the  greatest regard  and  respect for His Lordship, just as  I  have  for every other Judge in India." He gave reasons why Mr. Justice Hegde’s  name was not mentioned in the  Impeachment  Motion, although he had actually delivered the judgment. In  para 10.1 he submitted that "the very same judgment  can lead  to the Impeachment of one Judge who signs  it  knowing that its conclusions are wrong while leaving out  completely the  other Judge who signs it genuinely believing  that  the conclusions are right." In  para  10.2 he referred to the  petition  dated  27-10-69 under  Art. 32 of the Constitution to demonstrate his  great regard and respect for Mr. Justice Hegde.                              90               In para 10.3 he stated thus :               "It   is  entirely  wrong  to  say  that   the               Impeachment Motion "disparages and brings into               contempt  the authority of this Hon’ble  Court               and  tends  to weaken the  confidence  of  the               people in it and in any event has the tendency               and object of so doing." The Motion was solely               aimed   against  a  "decayed  fish"  and   its               laudable object was to save the "entire  tank"               from  contamination,  as  explained  above  in               para. 9.1. Therefore, the object of the motion               clearly was to save the prestige and honour of               the  Hon’ble  Court  and  to  enhance   public

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             confidence in it and not the reverse."               In para 10.4 he submitted that the judgment in               question  did  not  excite  respect  for   Mr.               Justice Shah.               In  para 10.5 he stated that  the  Impeachment               Motion  did not attribute any corruption  like               bribery,  liquor, be--A, favoritism,  etc.  to               Mr. Justice Shah.  He further added:               "What,  however, was a fatal weakness in  him,               was that he made up his mind on the result  of               a case either when he read the file at home in               a few minutes or within the first few  minutes               of the opening arguments, and once he made  up               his  mind, he dogmatically refused  to  listen               even  to the most reasonable arguments of  the               party disfavored by him. In order to shut down               the  arguments of that party, he would  go  to               the length of talking absurdly and like a mad   man               in  open  court. Such behaviour made  all  his               virtues useless and made him a man  thoroughly               unfit to be a judge."               We need not refer to instances he gave of some               other Judges and their behaviour in Court.               In para 10.8 he submitted               "The  Impeachment Motion ought to be  read  in               this  light.   Wherever it  says  "prejudice",               "bias", "grudge", venaeance" etc.,  everywhere               it  means  the  same-that he  had  formed  his opini on  and  was  seeking  to  stick  to  it               whatever came his way, and the more I tried to               make  him  see reason, the more  offended  and               revengeful    he   become.     "Extra-judicial               considerations"  also means the same,  because               becoming  prejudiced by one sided argument  is               certainly  not  judicial.  In this  light  the               entire  Impeachment  Motion  is  nothing   but               extremely  fair and and just comment on a  man               who richly deserved it.  The two illustrations               given on the back of the title cover,                                     91               which  are the gist of the entire  impeachment               motion, also point to this trait of Shri J. C.               Shah’s  character.   There is no hint  of  any               other weakness.  Even my letter to Shri C.  K.               Daphtary,  annexure A, clearly points only  to               this  weakness  of  Shri  J.  C.  Shah.   Fair               comment is not contempt." In para 11 he asserted that excerpts given in para 7 of  the petition,  reproduced above, were all correct excerpts  from the  Impeachment  Motion  and not  from  any  pamphlet.   He further submitted that "they are all true, correct and  fair criticism of Shri J. C. Shah as clarified above." Before  dealing with the question of maintainability of  the petition  and other points raised in his  application  dated January  28,  1971,  we  propose to  dispose  of  the  point regarding  the  validity  of the existing  law  relating  to contempt of court.  The first respondent has urged that  the existing  law relating to contempt of court by  writings  in respect  of proceedings which have finished is repugnant  to Art.  19(1)(a), read with Art. 19(2).  He contends that  the existing   law  imposes  unreasonable  restrictions   on   a citizen’s  fight  to  freedom  of  speech  guaranteed  under Art.(19)(1)  (a).   He urges that we should follow  the  law existing  in  the  United  States of  America.   Mr.  C.  K. Daphtary,  on  the other hand, contends,  first,  that  Art.

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19(1)(a) and Art. 19(2) do not apply to the law relating  to contempt   of  this  Court  because  of  Art.  129  of   the Constitution, which reads :               "The Supreme Court shall be a Court of  Record               and shall have all the powers of such a  court               including the powers to punish for contempt of               itself."               Secondly, Mr. Daphtary urges that the existing               law  relating to. contempt of court is  not  a               "law"  covered by the definition of  the  word               "law" in Art. 13(3)(a).  Thirdly, Mr. Daphtary               contends  that the existing law  only  imposes               reasonable restrictions within the meaning  of               Art. 19(2) of the Constitution.               In  Pandit  M.  S. M. Sharma  v.  Sri  Krishna               Sinha(1) this Court               held :                     "It would not be correct to contend that               Art. 19(1) (a)  of the Constitution controlled               the  latter  half of Art. 194(3)  or  of  Art.               105(3)  of  the  Constitution  and  that   the               powers, privileges and immunities conferred by               them  must yield to the fundamental  right  of               the  citizen  under Art. 19(1)(a).   As  Arts.               194(3)  and 105(3) stood in the  same  supreme               position as the provisions of Part III of  the               Con-               (1)   [1959] Supp. 1 S.C.R. 806.               92               stitution  and could not be affected  by  Art.               13,  the principle of harmonious  construction               must be adopted."               So construed, the provisions of Art. 19(1)(a),               which were general, must yield to Art.  194(1)               and the latter part of its cl. (3), which  are               special,  and  Art. 19(1)(a) could  be  of  no               avail to the petitioner." In  Special  Reference No. 1 of 1964(1) the  same  view  was confirmed. Relying on these authorities Mr. Daphtary urges that at time when the Constitution was enacted it was well known what the powers of a suprior Court of Record were in England and what was the law of contempt which the Courts of Record were  ad- ministering,  and therefore, there could be no  question  of testing  that law on the anvil of Art. 19(1)(a),  read  with Art. 19(2). It  is  not  necessary to decide this  point  or  the  point whether the existing law relating to contempt of Court is  a ’law’ or not within the definition of the word ’law’ in Art. (13)(3)(a),  as we have come to the conclusion that  in  any event  the  existing  law  imposes  reasonable  restrictions within  the  meaning of Art. 19(2).  Apart  from  this,  the Constitution  makes this Court the guardian  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. In  this case it is claimed that respondent I has  committed contempt  of  court  by circulating a  pamphlet  or  booklet containing   criticism  of  the  judgment  of  this   Court, delivered by Mr. Justice Hegde, on behalf of himself and Mr. Justice Shah, as he then was, and also containing scurrilous criticism of the conduct of both the Judges.  Then, what  is the existing law on this particular point ? We are  relieved from  reviewing earlier authorities because this  Court  has

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recently  in  two  cases examined the  law.  In  Perspective Publications  Ltd. v. State of Maharashtra (2)  Grover,  J., speaking  on behalf of the Court, reviewed the  entire  case law and stated the result of the discussion of the cases  on contempt as follows:               "(1)  It  will  not  be  right  to  say   that               committals  for contempt for scandalizing  the               court have become obsolete.               (2)   The  summary  jurisdiction  by  way   of               contempt must be exercised with great care and               caution   and  only  when  its   exercise   is               necessary for the proper administra-               tion of law and justice.               (1)   [1965] 1 S.C.R. 413.               (2) [1969] 2 S.C.R. 779.               93               (3)   It  is open to, anyone to express  fair,               reasonable and legitimate criticism of any act               or conduct of a judge in his judicial capacity               or  even to make a proper and fair comment  on               any decision given by him because "justice  is               not  a  cloistered  virtue  and  she  must  be               allowed to suffer the scrutiny and respectful,               even  though outspoken, comments  of  ordinary               men."               (4)   A  distinction  must be made  between  a               mere  libel or defamation of a judge and  what               amounts to a contempt of the Court.               The  test  in each case would be  whether  the               impugned  publication  is  a  mere  defamatory               attack   on  the  judge  or  whether   it   is               calculated to interfere with the due course of               justice or the proper administration of law by               this  Court.   It is only in the  latter  case               that it will be punishable as Contempt.               (5)   Alternatively  the test will be  whether               the  wrong is done to the judge personally  or               it is done to the public.  To borrow from  the               language  of  Mukherjee, J. (as he  then  was)               (Brahma  Irakash  Sharma’s case)(1)  the  pub-               lication of a disparaging statement will be an               injury to the public if it tends to create  an               apprehension  in  the  minds  of  the   people               regarding  the integrity, ability or  fairness               of   the   judge  or  to  deter   actual   and               prospective  litigants from  placing  complete               reliance  upon the court’s  administration  of               justice or if it is likely to cause embarrass-               ment  in the mind of the judge himself in  the               discharge of his judicial duties."                Later,  Hidayatullah, C. J., in R. C.  Cooper               v. Union of India (2) observed :               "There  is no. doubt that the Court  like  any               other institution does not enjoy immunity from               fair criticism.  This Court does not claim  to               be always right although it does not spare any               effort  to be right according to the  best  of               the  ability,  knowledge and judgment  of  the               Judges.   They  do  not  think  themselves  in               possession of all truth or hold that  wherever               others  differ from them, it is so far  error.               No  one is more conscious of  his  limitations               and  fallibility than a Judge but  because  of               his  training and the assistance he gets  from               learned  counsel he is apt to  avoid  mistakes

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             more   than  others.................  We   are               constrained  to say also that while  fair  and               temperate criticism of this Court or any other               Court  even if strong, may not be  actionable,               attributing improper motives, or tending to               (1) (1953) S.C.R. 1169.   (2) [1970] 2  S.C.C.               298, 301.               94               bring   Judges  or  courts  into  hatred   and               contempt or obstructing directly or indirectly               with  the  functioning of  Courts  is  serious               contempt  of  which notice must  and  will  be               taken.   Respect  is expected  not  only  from               those  to  whom the judgment of the  Court  is               acceptable  but also from those to whom it  is               repugnant.   Those who err in their  criticism               by   indulging   in   vilification   of    the               institution   of  courts,  administration   of               justice and the instruments through which  the               administration acts, should take heed for they               will  act at their own peril.  We  think  this               will be enough caution to persons embarking on               the path of criticism." We  are unable to appreciate how the law, as  summarised  in the  two  cases  places  unreasonable  restrictions  on  the freedom of speach.  But the argument of the first respondent was that we have now a written constitution, like the United States of America, and if in the United States, in order  to give  effect  to  the  liberty  of  speech  and  freedom  of expression the common law has been departed from, we  should also   follow   in  their  footsteps.   But   the   American Constitution  and  the conditions in the United  States  are different   from   those  in  India,.    In   the   American Constitution  there is no provision like Art. 19(2)  of  our Constitution. The  relevant part of the First Amendment to the U. S.  Con- stitution is as follows               "Congress shall make no law......... abridging               the freedom of speech or of, the press."               The difference between the First Amendment and               Art. 19(1)(a)               was   noted   by   Douglas  J,   in   Kingsley               Corporation v. Regents of the  University   of               New York(2) where he observed:               "If we had a provision in our Constitution for               "reasonable"  regulation of the press such  as               India has included in hers there would be room               for  argument that censorship in the  interest               of  morality  would  be  permissible."  (In  a               footnote he get out Art. 19(2)).               Even  in the United States, as far as we  have               been able to ascertain, in some States the law               is the same as in England (see Re Peter  Breen               (2)  Annotation  at page 572).   We  may  here               quote  some passages from the decision of  the               Nevada   Supreme  Court  in  that  case.    An               Attorney had made a statement about a reversal               by  the  Supreme Court of a  decision  of  the               Trial  Court.  In proceedings  for  disbarment               the Court observed :               "In fact, the question is presented whether or               not  the  language  and order  could.  in  any               event, be deemed               (1)   3 Led. 2d. 1512; 1522.               (2)   17 Lawyers Reports Annotated, New Series

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             p. 572.                                     95               contemptous  or  warrant any action  upon  the               part of this court, upon the theory that  they               are  but criticisms of an ,opinion of a  court               which it is the province of anyone to  indulge               in,  irrespective of whether  such  criticisms               are just or unjust, or whether or not they are               couched in respectful language.  The right  to               criticize an opinion of a court, to take issue               with  it  upon its conclusions as to  a  legal               proposition, or question its conception of the               facts, so long as such criticisms are made  in               good  faith, and are in ordinarily decent  and               respectful  language, and are not designed  to               wilfully   or  maliciously  misrepresent   the               position  of  the court, or tend to  bring  it               into  disrepute, or lessen the respect due  to               the authority to which a court of last  resort               is entitled, cannot be questioned.  To attempt               to   declare   any  fixed  rule   making   the               boundaries  where free speech in reference  to               court  proceedings  shall  end  would  be   as               dangerous as it would be difficult.  The right               of   free  speech  is  one  of  the   greatest               guarantees  to liberty in a free country  like               this, even though that right is frequently and               in  many  instances outrageously  abused.   of               scarcely less, if not of equal, importance, is               the  maintenance of respect for  the  judicial               tribunals, which are the arbiters of questions               involving  the lives, liberties, and  property               of the people.  The duty and power is  imposed               upon  the  courts to protect their  good  name               against  ill-founded and  unwarranted  attack,               the  effect  of which would be  to  bring  the               court   unjustly  into  public  contempt   and               ridicule,  and thus impair the respect due  to               its authority.  While it is the duty of all to               protect the courts against unwarranted attack,               that duty and obligation rests especially upon               the  members of the Bar and other officers  of               the  Court.  It would be foolish, as  well  as               useless,  for anyone to contend that the  very               highest  courts do not make mistakes.  ,Courts                             themselves  prove this by  overruling  previous               decisions."               "If any considerable portion of a community is               led  to believe that, either because of  gross               ignorance  of the law, or because of  a  worse               reason,  it  cannot rely upon  the  courts  to               administer  jusice  to a person  charged  with               crime,  that  portion of the  community,  upon               some  occasion is very likely to come  to  the               conclusion,  that it is better no to take  any               chances.  on  the courts failing to  do  their               duty.  Then may come mob violence with all its               detestable  features.  To say that  respondent               meant no disrespect for this Court is contrary               to the plain meaning of the language used, and               the  order directing that it be  spread  ,upon               the minutes of the district court."                              96 The  question  whether the existing law of contempt  is  un-

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reasonable  within Art. 19(2) of the Constitution  has  been the  subject of decisions in some of the High Courts.   They have  all  come  to the  conclusion  that  the  restrictions imposed  by this law are reasonable.  S. K. Das, J., then  a Judge  of the Patna High Court, in Legal Remembrancer v.  B. B.  Das Gujta,(1). after referring to the arguments  of  Mr. Ghosh, observed as follows:               "I  think that the answer to the arguments  of               Mr. Ghosh is to be found in the words of  Lord               Atkin "Justice is not a cloistered  virtue."               Any and every criticism is not contempt.   One               of   the  tests  is,  to  use  the  words   of               Mukherjea, J. in Brahama Prakash Sharma v. The               State   of  Uttar  Pradesh  (1)  whether   the               criticism is calculated to interfere with  the               due course of justice or proper administration               of law; whether it tends to create distrust in               the  popular  mind and  impair  confidence  of               people in the Courts of law.  These tests have               been  part  of the meaning of  the  expression               contempt of Court from before the Constitution                             and are still a part of its meaning--a   meaning               which the framers of the Consitution must have               known  when they used the expression.  We  are               giving  no wider connotation to it, and it  is               idle  to  contend  that  such  a   connotation               imports any unreasonable restriction on  free-               dom of speech and expression." We agree with the observations’ of the learned Judge. In  Lakhan Singh v. Balbir Singh (3) it was held  that  "the law  of contempt as laid down by British and  Indian  Courts imposes resonable restrictions on the exercise of the  right of  freedom  of speech and expression and the  previous  law continues in force even after the amended Art. 19(2) of  the Constitution."  It  was further stated that  "conditions  in India, are different from those prevailing in America.   The language of our Constitution after the amendment of  Article 19   requires  us  to  see  whether  the  restrictions   are "reasonable"." It is true that this case was dealing with  a publication which prejudiced mankind against a party  before the  case  was  heard,  but  the  general  observations  are relevant for the purpose of this case. In the State v. Vikar Ahmed (4) the High Court of  Hyderabad was  considering the question of scandalising the  Court  or the Judge.  In this connection they said :               "We  may observe that freedom of  press  under               our  constitution is not higher than  that  of               citizen, and that               (1)   [1953] I.L.R. 32 Pat. 1069; 1091.               (2)   [1953] S. C. R. 1169.               (3)   [1953] 1 I.L.R. All. 796.               (4) I.L.R. [1954] Hyd. 270; 278.               97               there   is  no  privilege  attaching  to   the               profession of the ,press as distinguished from               the members of the public.  To whatever height               the subject in general may go, so also may the               journalist, and if an ordinary citizen may not               transgress  the  law so must  not  the  press.               That the exercise of expression is subject  to               the  reasonable  restriction  of  the  law  of               contempt,  is borne out by cl. (2) of Art.  19               of  the  Constitution.  It should be  well  to               remember  that the Judges by reason  of  their

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             office  are precluded from entering  into  any               controversy  in  the  columns  of  the  public               press,  nor can enter the arena and do  battle               upon equal terms in newspapers, as can be done               by ordinary citizens." Respondent  No. 1 contends that the present law  places  un- reasonable restrictions because it serves no useful purpose, and even a scurrilous attack on a Judge does not affect  the administration  of  justice.  He further says that  after  a case  has been decided, if a judgment is severely  and  even unfairly  criticised, and assuming that this has an  adverse effect on the administration of justice, it must be balanced against  the  harm which would ensue if  such  criticism  is stopped.  We are unable to agree with him that a  scurrilous attack  on a Judge in respect of a judgment or past  conduct has no adverse effect on the due administration of  justice. This  sort  of  attack  in  a  country  like  ours  has  the inevitable  effect  of  undermining the  confidence  of  the public  in  the Judiciary.  If confidence in  the  Judiciary goes, the due administration of justice definitely suffers. The  first respondent referred to Art. 73, Art. 246, list  I entry 77, and Art. 142(2).  These do not throw any light  on the  question whether the existing law of  contempt  imposes Unreasonable restrictions.  Article 73 deals with the extent of the executive power of the Union.  Article 246 inter alia deals with legislative power of Parliament.  Entry 77 List I reads               "Constitution, Organisation, jurisdiction  and               powers   of  the  Supreme   Court   (including               Contempt      of     such      Court)      and               the.................. "               We  are not concerned here with the extent  of               the  powers  conferred by Art. 246  read  with               entry 77 of List I.               Art. 142(2) reads :               "(2) Subject to the provisions of any law made               in this behalf by Parliament the Supreme Court               shall, as respects the whole of the  territory               of India, have all and every power to make any               order   for  the  purpose  of   securing   the               attendance  of  any person, the  discovery  or               production    of   any   document,   or    the               investigation or punishment of any contempt of               Itself." 7-1 S. C. India/71 98 We are here also not concerned with any law made by  Parlia- ment.   Art.  129 shows that the Supreme Court has  all  the powers  of a Court of Record, including the power to  punish for  contempt  of itself, and Art. 142(2) goes  further  and enables us to investigate any contempt of this Court. We  are accordingly of the opinion that assuming  that  Art. 19(2) applies, the restrictions imposed by the existing  law of contempt are reasonable, and are in public interest. Respondent  No.  1 sought to justify the extracts  which  we have  reproduced  above from para 7 of  the  petition.   His justification was, in brief, that he could show that in  the judgment there were numerous errors.  He proceeded to  point out a number of so-called errors to us but we told him  that we were not sitting as a Court of Appeal and we were willing to  assume in his favour, without deciding the  point,  that there were errors in the judgment.  But even so, there is no excuse  whatsoever for using the language which he  employed in these passages.  It must be remembered in this connection that it was Mr. Justice Hegde who drafted and delivered  the

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judgment.   He  does not impute dishonesty  to  Mr.  Justice Hegde  but to Mr. Justice Shah.  He explains this by  saying that it was Mr. Justice Shah who controlled the hearing  and he  would not even allow Mr. Justice Hegde to listen to  his arguments.  We are unable to believe this. According  to Respondent No. 1, the words  "dishonest  judg- ment"  and "dishonesty" have to be understood in  a  special sense.  He says that these words were used in order to  show the  manner in which the appeal was heard and the manner  in which  Mr.  Justice Shah made up his mind quickly  and  then refused  to  budge from that position.  It  is  well-settled that we have to give the plain meaning to the words used  in the pamphlet or the booklet.  Giving the ordinary and  plain meaning it appears to us that "dishonesty" means dishonesty, i.e. that he has ascribed to the Judge a conduct which would be most reprehensible.  In other words he says that although Mr. Justice Shah was convinced that the appeal of the  State of  U. P. should be dismissed he cleverly asked Mr.  Justice Hegde to deliver the judgment and allow the appeal, and that Mr. Justice Hegde wrote down what Mr. Justice Shah  dictated or told him to write. We have already set out paras 10.5 and 10.8 of the affidavit filed  by the first respondent.  We are unable to  give  any other  meaning  to the words  "dishonest  judgment",  "open- dishonesty",   "deliberately   and   dishonestly",    "utter dishonestly", i.e. the meaning which he now seeks to ascribe to  these  words.  It seems to us that whoever  drafted  the Impeachment Motion drafted it with                              99 a  view  to  bring  the facts  within  the  meaning  of  the expression  "misbehaviour" in Art. 124(4) for he  must  have realised that to say that a Judge has committed errors, even gross errors, cannot amount to "misbehaviour". It seems to us that in view of the decisions of the  various High  Courts  in India and this Court the passages  we  have extracted,  read  as a whole, constitute gross  contempt  of this  Court and the two Judges.  In this connection  we  may refer  to some of the earlier cases decided by various  High Courts.   In Moti Lal Ghosh In re (1) a newspaper  published articles scandalizing the Hi Court and the Chief Justice  in his administration thereof, by allegations implying that the Chief  Justice had constituted a packed Bench.  It was  held that the articles constituted contempt of Court.  One of the reasons  given  for  holding contempt  was  that  "the  mere suggestion  that  such  a  thing is  within  the  bounds  of possibility  is  a grave reflection upon the Court  and  the persons responsible for its administration." One passage  of this judgment, which may be referred to, is at page 182 :               "The  other  matter to which I  refer  is  the               passage at the end of the article in which the               author  expresses perfect faith in  the  Chief               Justice.  This, to my mind, is so inconsistent               with  the insinuations previously made in  the               articles,  that it is impossible  to  conceive               that  it was genuinely intended.  It is  much.               in  the  same style as the conclusion  of  the               previous article, and I do not think there can               be any doubt as to the object of the author in               using these words, viz., to try and provide  a               means of escape for himself if he is taken  to               task for the previous matter contained in  his               article."               Similar   remarks  can  be  applied   to   the               protestations of the respondent No. 1 that  he               has  respect  for this Court and  the  Judges,

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             including Mr. Justice Hegde.               In Emperor v. Marmadule Pickhall (2) the  High               Court of Bombay observed:               "The  article  as a whole would leave  on  the               mind   of   an  ordinary  reader   the   clear               impression    that    injustice    had    been               deliberately done on political grounds to some               of  the accused who were apparently  innocent.               In   other   words  it   attributes   judicial               dishonesty  to  the Judges.  I  am  unable  to               accept  the  contention that such  an  article               does  not constitute a contempt of Court.   We               have to con-               (1)   [1918] I.L.R. 45 Cal. 169,182.               (2)   A.I.R. 1923 Bom. 8, 10.               100               sider  the natural and probable effect of  the               article  and not only the avowed intention  of               the  editor as indicated in his affidavit.   I               think  that the publication of the article  in               question constitutes a contempt of Court."               Mr.   Justice  Shah,  Acting  Chief   Justice,               further observed               "I  am slow to hold that any unfair  criticism               of  Courts  of  Judges  constitutes  such   an               interference   with  the   administration   of               justice as should be punished.  I am wiling to               act  upon the view that the confidence of  the               public in Courts tests mainly upon the  purity               and  correctness of their  pronouncements  and               that such confidence is not lightly shaken  by               a  mistake or unfair criticism of  this  kind.               At the same time it is clear that the tendency               of such criticism is to undermine the  dignity               of  the Court and in the end to embarrass  the               administration  of justice.  The faith of  the               public in the fairness and incorruptibility of               Judges is a matter of great importance."               In Murli Manohar Prasad in re(1), a Full Bench               decision of five Judges, it was observed:               "It  is for this Court as a matter of  law  to               construe  words  and  phrases  which  have  no               technical  significance and to decide what  is               their  meaning  and what is the  effect  which               they are calculated to produce, and I have  no               hesitation in deciding that the words used  by               the  author mean, and are calculated to  mean,               and intended to mean that the conduct of cases               before   the  Chief  Justice  is   such   that               arguments and authorities are ignored and that               for  that reason the life and liberty of,  the               subject brought before the Chief Justice is in               peril.  Such a statement made about a Judge in               the  execution of his office is a contempt  of               Court, of the gravest character."               In  the matter of K. L. Gauba(2) where a  book               published  by an advocate of the  Lahore  High               Court was concerned, the Full Bench observed               "This    book   contains    most    scandalous               allegations  of  improper  and  even   corrupt               motives against Judges of this Court.  It  is,               therefore,  deliberately calculated to  inter-               fere   with  and  bring  into   contempt   the               administration of justice in this Province and               to lower the prestige of this Court."

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             (1)   [1929] I.L.R. 8 Pat. 323; 340.               (2)   [1942] I.L.R. 13 Lah. 41 1; 423; 424.                                    101               We  may also mention that following Ram  Mohan               Lal,  in the matter of (1) Coats v.  Chadwick,               (2) and Tusher Kanti Ghosh, Editor, In  re(3),               the  Full  Bench  disallowed  the   advocate’s               application to examine witnesses in defence.               It Observed :               "There is not a single case on record,  except               one to which reference will presently be made,               where  a  person guilty  of  scandalizing  the               Court  pleaded or attempted to prove that  the               libel  was  true.  In Ram Mohan  Lal,  in  the               matter  of  (1)  an attempt was  made  by  the               contemnor  to  call  evidence  to  prove   his               allegations but the Court refused to call  the               witnesses  and held that there can be no  jus-               tification   of  contempt  of   Court.    Even               assuming  that  the  writer  of  a   manifesto               believes all the states therein to be true, if               anything in the manifesto amounts to  contempt               of Court, the writer is not permitted to  lead                             evidence   to  establish  the  truth  of   his               allegation.               In Coats v. Chadwick (2) Chitty, J.,  observed               in a contempt case as follows :               "The Plaintiffs’ counsel not only admitted but               boldly  asserted,  and made it part  of  their               argument, that the circular was libellous, and               that  they could justify the libel,  and  they               referred   to  some  of  the  evidence   which               apparently had been adduced for the purpose of               sustaining  justification.  But  the  evidence               and the argument founded on it are  irrelevant               on this motion."               In  Tusher  Kanti  Ghosh, Editor,  In  re  (3)               Mukherji,  J.,  at page  432,  describing  the               characteristics of proceedings to punish breve               menu  contempt of Court observed that in  such               proceedings  the contemnor is  precluded  from               taking a plea or a defence." The first respondent has argued his case at great length but we  are  unable to hold that he did not commit  contempt  of court.  Further, he did so deliberately.  He admits that  he took part in the drafting of the Impeachment Motion, and  it seems to us that whoever is responsible for the final  draft deliberately  used words in order to bring  the  allegations within the word "misbehaviour" in art. 124(4).  He said that by assisting in the drafting he did not commit any  contempt of  Court.   That may or may not be so. But so  far  as  the present  case  is concerned we need not go into  that  wider question as he has admitted that he gave the (1) A.I.R. [1935] All. 38. (2) L.R. [1894] 1 Ch.D. 347. (3) A.T.R. J 93 5 Cal. 419. 102 booklet or the pamphlet to Mr. Mahindroo though according to him it was not given to him by way of sale and was not being offered  for sale in general.  He further said that  it  was admitted  that  the booklet was widely circulated  but  that this must have been done by some members of Parliament.   He complained that those members had not been arraigned as  co- respondents.   If some members of Parliament circulated  the booklet or the pamphlet, as alleged by Respondent No. 1,  to

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persons  who  were not members of  Parliament  they  equally committed contempt of this Court.  But as no body has chosen to  file  a petition against them, nor are we  aware  as  to which  member or members of Parliament have  circulated  the booklet or the pamphlet they could not be proceeded against. The fact that these members of Parliament had not been  made co-respondents  does not exonerate the first  respondent  or make it any the less contempt of court. We must now refer to another defence which he relied on.  He said   that  art.  105(2)  of  the  Constitution   and   the Parliamentary  Proceedings (Protection of Publication)  Act, 1956  (XXIV  of  1956) protect him.   He  submitted  in  his affidavit  that  "firstly, Parliament is  authority  can  be taken  to be implied to this publication as it has taken  no exception to or action on it; secondly, the article  implies that  when the publication is without such  authority,  only the  Parliament  shall  take  action  for  it."  He  further submitted  that  Sections  3  and  4  of  the  Parliamentary Proceedings  (Protection  of Publication) Act, 24  of  1956, also  protect  substantially true reports  of  Parliamentary proceedings  unless made with malice.  Article 105(2)  reads as follows :               "  No member of Parliament shall be liable  to               any  proceedings  in any court in  respect  of               anything  said  or any vote given  by  him  in               Parliament  or  any committee thereof  and  no               person  shall be so liable in respect  of  the               publication  by  or  under  the  authority  of               either  House  of Parliament  of  any  report,               paper, votes or proceedings."               We  are unable to appreciate how on the  facts               proved  in this case Art. 105(2) applies.   He               has not relied on any express authority of the               Lok  Sabha,  and  Art. 105 (2)  does  not  say               anything  of any implied  authority  resulting               from  non-action of Parliament.   Nothing,  in               fact  was  shown  to us as  to  establish  the               publication of the pamphlet or the booklet  as               a  publication "by or under the  authority  of               either  House  of Parliament  of  any  report,               paper, votes or proceedings."                Section  2 of the  Parliamentary  Proceedings               (Protection of Publication) Act, 1956, defines               "newspaper" thus :               "In  this Act, "newspaper" means  any  printed               periodical  work  containing  public  news  or               comments on                                    103               public  news,  and  includes  a  news   agency               supplying   material  for  publication  in   a               newspaper."               Sections 3 and 4 of this Act read thus :               "3.(1)   Save   as   otherwise   provided   in               subsection(2),  no person shall be  liable  to               any  proceedings,  civil or criminal,  in  any               Court  in  respect  of the  publication  in  a               newspaper  of a substantially true  report  of               any proceedings of either House of Parliament,               unless the publication is proved to have  been               made with malice.               (2)   Nothing  in  sub-section  (1)  shall  be               construed as protecting the publication of any               matter,  the publication of which is  not  for               the public good.               4.    This  Act  shall apply  in  relation  to

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             reports  or  matters  broadcast  by  means  of               wireless  telegraphy as part of any  programme               or service provided by means of a broadcasting               station  situate  within  the  territories  to               which  this  Act  extends  as  it  applies  in               relation to reports or matters published in  a               newspaper." Various questions of interpretation would have arisen if the pamphlet  or the booklet had been published in a  newspaper, as defined in s. 2. One of them would be whether a  contempt proceeding  is  a criminal or a civil proceeding or  not;  a question  would also arise whether a notice  of  impeachment under  art. 124(4), if not admitted by the Speaker under  s. 3(1) of the Judges (Inquiry) Act, 1968 (Act LI of 1968),  is a proceeding of Parliament within the meaning of s. 3 of the Parliamentary  Proceedings (Protection of Publication)  Act, 1956.  But as here we are not concerned with the publication of  the pamphlet or the booklet in a newspaper we  need  not decide these questions.  It seems to us that the  protection under s. 3 is only given to newspapers or broadcasting agen- cies.   The  protection  is  available  provided  that   the publication has not been made with malice and is for  public good. Even  so  Respondent No. 1 contends that ss.3 and 4  of  the Parliamentary  Proceedings (Protection of Publication)  Act, 1956,  show  that  Parliament considers  it  important  that proceedings of the Houses of Parliament should be made known to the public. and therefore, if a private person does  what is  permitted by s. 3, it cannot be said to be  contempt  of court   because  by  permitting  publication  under   s.   3 Parliament must be deemed to have said that publication even of a proceeding which would ordinarily amount to contempt of court does not affect the due administration of justice.  We are  unable to deduce such an inference from ss. 3 and 4  on the statute book.  This is a limited protection given 104 to  newspapers  and  even  then  it  will  require   serious consideration whether a contempt proceeding is a proceeding, civil or criminal, within the meaning of S. 3. In  the  result  we hold that neither art.  105(2)  nor  the Parliamentary  Proceedings (Protection of Publication)  Act, 1956 protect the first respondent in respect of the contempt of court committed by him. The first respondent said, and he has also stated so in para 10  of his affidavit, that the petitioners  had  "needlessly dragged  in  the fair name of Hon’ble  Mr.  Justice  Hegde." According  to  him, the name of Mr. Justice  Hegde  did  not occur even once anywhere either disparagingly or  otherwise, and he had the greatest regard and respect for him, just  as he had for every other Judge in India.  He said that he took great  care to keep out the fair name of Mr.  Justice  Hegde although he did so at the risk of the impeachment motion not being  admitted.  It seems to us, however, that at least  to persons  who  knew  that the appeal had been  heard  by  Mr. Justice Shah and Mr. Justice Hegde and that the judgment was drafted  and delivered by Mr. Justice Hegde, and to  persons who  are  familiar  with  the practice  of  this  Court  the statement  that "the other Judge merely toed his line"  must appear  as  gross  contempt of Mr. Justice  Hegde  and  this Court.  The expression "toed the line" used in reference  to Mr.  Justice  Hegde, by clear implication,  means  that  the learned Judge, contrary to his own views, followed what  was imposed upon him by Mr. Justice Shah.  There can be no  more flagrant contempt of a Judge than to say that he surrendered his own judgment in deference to or on dictation by  another

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Judge sitting with him. In para 3.2 of his affidavit Respondent No. 1 submitted "But I am not at this stage making any attempt to contradict evidence  given  or to give any evidence on my  side.   This will be done if and when the occasion arises or the  Hon’ble Court so orders.  I will have to summon some documents  also for that purpose." We indicated to him during the course of the hearing that he should  file  his affidavit or affidavits dealing  with  the merits  of  the case but that he would not be  permitted  to lead  any  other  evidence to  justify  contempt.   We  have already referred to cases which show that he cannot  justify contempt.  If a judgment is criticized as containing errors, and coupled with such criticism, dishonesty is alleged,  the Court hearing the contempt petition would first have to  act as an Appellate Court and decide whether there are errors or not.   This  is not and cannot be the function  of  a  Court trying a petition for contempt.  If evidence was to be 105 allowed  to  justify allegations amounting  to  contempt  of court it would tend to encourage disappointed  litigants-and one  party or the other to a case is always  disappointed-to avenge their defeat by abusing the Judge. This   takes   us   to  some   of   the   points   regarding maintainability   of  the  petition  and  the   defects   in procedure, as alleged in his ,application dated January  28, 1971 (Criminal Misc.  Petition No. 172 of 1971.) In  Sukhdev Singh Sodhi v. Chief Justice and Judges  of  the Pepsu High Court(1) this court observed:               "We  hold therefore that the Code of  Criminal               Procedure   does  not  apply  in  matters   of               contempt triable by the High Court.  The  High               Court can deal with it summarily and adopt its               own procedure.  All that is necessary is  that               the  procedure is fair and that the  contemnor               is  made aware of the charge against  him  and               given  a  fair and reasonable  opportunity  to               defend  himself.  This rule was laid  down  by               the  Privy  Council In re Pollard(2)  and  was               followed  in India and in Burma in In re  Val-               labhdase) and Ebrahim Mamoojee Parekh v.  King               Emperor(3).               In  our view that is still the law.  It is  in               accordance  with  the Practice of  this  Court               that  a notice was issued to  the  respondents               and   opportunity  given  to  them   to   file               affidavits    stating    facts    and    their               contentions.   At one stage,  after  arguments               had begun Respondent 1 asked for  postponement               of  the case to engage some lawyers  who  were               engaged in fighting elections.  We refused ad-               journment because we were of the view that the               request was not reasonable and was made with a               view  to delay matters.  We may  mention  that               the first respondent fully argued his case for               a number of days.  The procedure adopted by us               is the usual procedure followed in all cases.               The   first  respondent  contended  that   the               affidavit  of Mr. ’S. N. Prasad was  defective               because the verification was not in               accordance with the provisions of law relating               to affidavits.  In para 2 of the affidavit Mr.               S. N. Prasad stated :               "that  I  state  that  the  facts  stated   in               paragraphs 1 and 8 of the petition are true to

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             my personal knowledge and the facts stated  in               paragraphs  2 to 7 are believed to be true  by               me on the basis of the information received." (1)  [1945] S.C.R. 454; 463 (2)  L.R. 2 P.C. 106 at 120 (3)  I.L.R. 27 Dom. 394 (4)  I.L.R. 4 Rang. 257 at 259-261 106 The first respondent said that the source of information had not  been  disclosed.   Para 2 of  the  petition  refers  to proceedings  in this Court and it was not necessary to  have disclosed  any  further source of information.   As  far  as paras  3  and 4 are concerned, the first  respondent  admits that he approached members of Parliament to file a motion of Impeachment  against  Mr.  Justice  Shah.   Calling  this  a "campaign"  is  only to describe in a word  his  activities. Whether  it should be strictly called a campaign  is  beside the  point.   The essential facts mentioned in  para  5  are admitted  by the first respondent.  Therefore the fact  that the  source of information was not disclosed does not  debar us  from  taking  the facts into  consideration.   The  last sentence  of  para 5, viz., "The said pamphlet, was  as  the petitioners  belive, sold or offered for sale to the  public by  Respondent  No.  3."  is a matter  of  belief.   Para  6 contains  inferences  and submissions in  respect  of  which there   was  no  question  of  disclosing  the   source   of information.   Para 7 contains extracts from the booklet  or the pamphlet which was attached as an annexure.  In view  of the document having been attached it was not necessary  that the source of information regarding pars 7 should have  been disclosed.   The allegations, in para 9 of the petition  are supported by an affidavit of Mr. B. P. Singh, Advocate,  who has verified that the contents in his affidavit are true  to his knowledge.  Para 10 of the petition contains submissions and it was not necessary to state the source of information. We  are unable to see any defect in the affidavit  filed  on behalf of the petitioners. In para 5 of his petition dated January 28, 1971, the first. respondent  stated that "the complainant must  disclose  all his evidence with the initial petition and cannot be allowed to supplement any evidence later." He submitted that "In the present  petition, no evidence against the  respondents  has been  disclosed  except  in regard to  paragraph  9  of  the petition,   although  there  are  very  wide  and   sweeping allegations in other paragraphs." There is no basis for this complaint  because all the affidavits were  filed  alongwith the petition. In para 6 of the petition dated January 28, 1971, he  stated that  "the  charges against the alleged contemnors  must  be specifically  written.   It is not sufficient to  leave  the respondents  searching  for  the  charges  from  the  entire petition."  He submitted that the petition did  not  clarify specifically  as to what the distinct charges  against  each respondent were.  In the course of his arguments he referred to a number of authorities in support of this: para.  It  is unnecessary to refer to them except one, because it is clear that on the facts the charge against the first respondent is quite clear and simple and it is not necessary that a formal charge should be drawn up by the petitioners or the Court. 107 In  Nagar  Mahapalika  of  the  City  of  Kanpur  v.   Mohan Singh,(1)  this  Court was concerned with  the  contempt  of Allahabad High Court by the Nagar Mahapalika of the City  of Kanpur by committing a breach of an injunction issued by the High Court.  In this connection Sarkar, J., as he then  was,

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speaking on behalf of the Court, observed :               "We  will  deal  first with the  case  of  the               Municipality.  It will have been noticed  that               it  was  not the respondent’s  case  that  the               Municipality had issued any new licence  after               the  order of July 14, 1961.  In fact, it  was               conceded that it did not do so.  What was said               was  that the Municipality adopted a  practice               of  realising rickshaw taxes from  the  owners               and  printing the fact of the receipt  of  the               tax  on the rickshaws and permitting  them  to               ply without licences.  The way the case  seems               to  have  been put before the High  Court  was               that  this  was a subterfuge  adopted  by  the               Municipality  to  get round the order  of  the               High  Court, the object of which was  to  stop               new  rickshaws plying for hire, by  permitting               rickshaws to ply without a licence on  payment               of  the tax.  This contention was accepted  by               the  High  Court.   It seems  to  us  somewhat               unfortunate that the matter proceeded in  this               way.  An allegation of contempt of court is  a               serious one and is considered by courts with a               certain   amount  of  strictness.   A   person               against  whom  such an allegation is  made  is               entitled to be told the precise nature of  it.               In this case the respondent did not state that               any   subterfuge  had  been  adopted  by   the               Municipality  or  that  the  Municipality  had               sought  to  defeat the orders of  the  courts;               that was only insinuated.  This is not a  fair               or  permissible way of charging a person  with               contempt  of  court.   The  contempt   alleged               cannot  be  left  to be  spelt  out  from  the               allegations made nor can the person charged be               left to guess what contempt is alleged against               him.  Further, paragraph 8 of the petition for               committal for contempt stated that there was a               direct  contravention  of the order  which  of               course, there was not as no licences had  been               issued.  Neither were any particulars given as               to  how the alleged practice that was  adopted               was  intended to get round the order,  nor  of               how  the Municipality permitted  rickshaws  to               ply  without licences.  We think  the  learned               Attorney-General  was perfectly  justified  in               drawing our attention to these defects in  the               petition and characterizing them as serious." (1)  Cr. AP.  No 27 of 1964; Judgment dated 31-1-1966. 108 The  facts in this case are quite different and it seems  to us  that the petition is as clear as it can be.  By  setting out  the extracts from the pamphlet or the  booklet  pointed attention has been drawn to the offending passages, although the  whole  booklet  or  the  pamphlet  was  annexed  as  an annexure. In  para  7 of the application dated January  28,  1971  the first respondent submitted that the petition should not have contained  anything which was not a charge against him.   He complained   that  the  petition  contained   several   wild allegations  based entirely on surmises.  He  further  added that  "being without evidence they cannot be, and  have  not been   put   down  specifically  as  charges   against   the respondents,  and therefore ought not to find place  in  the petition." He developed this point by referring to paras  3,

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4   and  5  of  the  petition.   These  paras  seem  to   be introductory  to  the main charge and there is no  law  that anything introductory should not be put in the petition.  He admits that he patiently approached each Hon’ble Member  and narrated  the  deep  wrong done to him and he  was  able  to satisfy  quite a number.  Nobody denies that he has a  right to  approach  and convince the Hon’ble Members and  that  he exercised that right.  But if the petitioners have called it a  "campaign" in paras 3 and 4 of the petition,  no  serious objection can be taken to these paras. In  para  8 of this application Respondent No.  1  submitted that  there  was delay of more than 120 days in  filing  the petition  for contempt.  He says that delay is always  fatal to contempt action unless it is fully explained and condoned in proper cases and on proper application.  We are unable to see any delay in this case.  After the first respondent gave a copy of the pamphlet or the booklet to Mr. Mahindroo,  the petitioners   had   to   ascertain   facts   regarding   its publication, printing, etc.  As the Attorney General did not move  in the matter, the President of the Supreme Court  Bar and  the other petitioners chose to bring this  contempt  to our  notice.   It  is  no  doubt  desirable,  as  stated  by Oswald(1) that "an application for attachment should be made promptly,  or the Court may refuse to attach."  But  whether there  has  been  delay or not depends on  the  facts  of  a particular  case.   In  this  connection  Respondent  No.  1 referred  to page 231 of Ramchandran’s book on ’Contempt  of Court under the Indian Constitution’ where the author  gives the American Law on this point as follows :               "While delay in contempt proceedings is to  be               deprecated  the  power of court to  take  such               action  is not however lost by  delay.   The               summary power is not               (1)   Oswald-Contempt  of Court-Third  edition               p. 196               109               in any way jeopardized on that account  except               where  delay extends substantially beyond  the               end of trial, in which event it has been  held               fatal to the power of summary punishment."               But even the American law is quite clear  that               delay is not fatal.               Similarly, in State Government, Madhya Pradesh               v. Vinaya Kumar(1) it was observed as follows:               "We  do  not  say that delay  will  always  be               fatal.  There may be cases in which it is not.               Examples of both kinds of cases will be  found               in  7  Halsbury’s Laws  of  England,  Hailsham               Edition page, 37 Note (p)." In  this connection we may also deal with his  objection  in para  10  of the application that the  petitioners  have  no locus  standi.   This  Court can issue a  notice  suo  motu. Further,   the  advocates  of  this  Court,  including   the President   of  the  Supreme  Court  Bar  Association,   are perfectly  entitled to bring to our notice any  contempt  of this Court. The first respondent referred to Lord Shawcross  Committee’s recommendation  that "proceedings should be instituted  only if  the  Attorney-General in his discretion  considers  them necessary." This is only a recommendation made in the  light of circumstances prevailing in England.  But it is not  law. We  may  mention that the Attorney-General  in  England  has quite  a  different position than  the  Attorney-General  of India,   or  the  Advocates-General  of  the  States.    The Attorney-General in England is a member of the Cabinet,  and

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as  far  as  we are aware, unlike the  Attorney  General  in India,  he  does  not  have  to  receive  instructions  from Government whether to move a contempt petition or not. Be  that as it may, there is nothing in law  which  prevents this  Court from entertaining a petition at the instance  of the President of the Supreme Court Bar Association and three other advocates of the Court.  The Bar is vitally  concerned in  the maintenance of the dignity of Courts and the  proper administration of justice. The  next point mentioned in the petition dated January  28, 1971, is regarding non-joinder of the 200 or so  signatories of the motion of impeachment.  We are unable to see why  the petition  is bad for non-inclusion of the said  signatories. There  is  no  allegation  or proof that  any  of  the  said signatories circulated this booklet or pamphlet outside  the Parliament, to persons other than members of Parliament. (1)  A.I.R. 1952 Nag. 34 110 We may now deal with the other legal submission contained in his  affidavit.  He submitted, in brief, that the  substance of  the impeachment motion had already been put in the  writ petition which he filed against Mr. Justice Shah on  October 27,  1969.  According to him, a reproduction of  proceedings of court is not contempt unless the Court has prohibited the publication.   We  are  unable to appreciate  this  line  of argument.   Even if he had filed a writ petition  containing the  substance of the impeachment motion, we are  unable  to see  how it affords a defence to the commission of  contempt of this Court by circulating the booklet or the pamphlet. In para 21 of his affidavit his defence seems to be that  he had  told Mr. Justice Shah during the course of the  hearing that  he  was only telling the truth and if in  telling  the truth it was necessary for him to go to jail for contempt he was  ready  for the same.  He seems to suggest that  if  Mr. Justice Shah did not choose to take any action for  contempt it  is improper and not open to the petitioners to  initiate these  proceedings.  We are unable to see any force in  this submission. In  para 23 of his affidavit his defence is that the  filing of the petition is itself contempt because "the real  object of the petitioners, which is very obvious and writ large  on their faces, is to take revenge upon me for having dared  to approach  the  Parliament against their friend,  junior  and erstwhile  boss Shri J. C. Shah.  The cloak of  "publication and  distribution  outside Parliament is too  thin  to  hide their real motive." We are unable to see how the petition is itself  contempt.  This para shows the real attitude of  the respondent.  He seems to think that people act only to  take revenge as he seems to have done. We  have already dealt with his submissions in para  24  and 24.1. The contention of the respondent in para 25 is that even  if it  is  a contempt it is a technical  and  trivial  contempt which is not actionable.  We are unable to hold that on  the facts  of the case it is a technical and  trivial  contempt. It  constitutes gross contempt of two Judges of  this  Court and the Court itself.  He was well aware of the contents  of the  pamphlet  or the booklet.  The affidavit of Mr.  B.  P. Singh  establishes that Respondent No. 1 was showing  copies of  the pamphlet or the booklet which he was  carrying  with him  to  several members of the Bar in the  Bar  Association room.   His affidavit and Mr. Mahindroo’s affidavit  further establish  that  he  gave one copy of it  to  Mr.  Mahindroo openly  in the Bar room.  Being a lawyer he must have  known that it would be discussed there.

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                           111 The  cases referred to in para 25 and in the course  of  the arguments are quite distinguishable and are not applicable. Now to come to the case of Respondent No. 2. Mela Ram.  ,one of the partners of Rising Sun Press, stated in his affidavit that  in the month of April 1970, the first respondent  went to  him for ,entrusting printing work and said that  he  had been  sent  by Shri Tulsi Ram, Proprietor  Youngman  &  Co., Egerton  Road, Delhi, whose printing work was being done  by him  for  the  last  about 16 years and  who  used  to  send customers  to him from time to time for printing  work.   He told  the first respondent to see the contractor,  Ram  Vir, who  did  composing work for him.  He says that he  did  not look  into the material which the first  respondent  brought for  printing and he left the composition work to  the  con- tractor above-named.  He further says that as at about  that time  his  mother-in-law expired he had to  go  to  District Gurdaspur  where he stayed about a week and in  his  absence the first respondent sat day-to-day with the contractor  and compositors for having the composition completed quickly and he  also  got  the  printing done in  his  press  before  he returned from Gurdaspur.  After getting the material printed the  first  respondent  collected the same  from  the  press before his return from Gurdaspur.  He further says that  the printing  forms  had already been taken away  by  the  first respondent  before he returned and it was not  possible  for him  to know the contents.  He further says that  the  title cover of the printed booklet was not printed by him nor  was the binding done by him.  He further alleges that the  first respondent had not even paid his charges.  He expressed  his unconditional  and  unqualified apology to this  Court.   In view of the unconditional apology tendered by him, we do not think any further action need be taken against him. The third respondent has not been served or traced.  We need not say anything about him for the present. It  seems  to  us that on the facts of  this  case  a  heavy sentence  is called for.  Not only did the first  respondent commit gross contempt of this Court but he took advantage of the  retirement of Mr. Justice Shah and hurled fresh  abuses on him in Court.  It is true that he has offered an apology, but an apology coupled with fresh abuses can hardly be taken note of.  However, we have decided to be lenient and  impose only  a sentence of simple imprisonment for two months.   We have  decided to be lenient because such gross contempts  of this  Court are happily rare, but any future gross  contempt of  this  Court ,of this nature will be dealt  with  not  so leniently.   In  the  result it is held that  0.  P.  Gupta, respondent No. 1, is 112 guilty  of  contempt of this Court and sentenced  to  simple imprisonment for two months.  We direct that he be  arrested and  committed to civil prison for two months.   We  further authorize the Registrar to take all necessary steps in  this behalf. V.P.S. 113