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CASE NO.: Appeal (civil)  7948 of 2004

PETITIONER: Haridas Das

RESPONDENT: Smt. Usha Rani Banik & Ors

DATE OF JUDGMENT: 16/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 7948   OF 2004

CONTEMPT PROCEEDING

Haridas Das                                                     \005.Appellant

Versus

Smt. Usha Rani Banik & Ors.                             \005.Respondents

Apu Banik                                                       \005Contemnor

Dr. ARIJIT PASAYAT, J.

1.      "Judge bashing" and using derogatory and contemptuous  language against Judges has become a favourite pastime of  some people.  These statements tend to scandalize and lower  the authority of the Courts and can not be permitted because,  for functioning of democracy, an independent judiciary to  dispense justice without fear and favour is paramount. Its  strength is the faith and confidence of the people in that  institution. That cannot be permitted to be undermined  because that will be against the public interest.                

2.      Judiciary should not be reduced to the position of flies in  the hands of wanton boys. Judge bashing is not and cannot be  a substitute for constructive criticism.

3.      During hearing of Civil Appeal No. 7948 of 2004 -  it was  noted that the contemnor had filed an application styled as  "I.A for interim directions" purported with a prayer to initiate  contempt proceedings against respondent No.4-Smt.  Sharmista Das.  Reference was made to a letter purported to  have been written by respondent No.4 and sent to the  President of India praying for removal of the then Chief Justice  of India for his proved incapacity, misbehaviour and for  appointment of Mr. Apu Banik (Contemnor).  It was further  stated as follows:

"That a dispassionate study without  harbouring any pre-conceived motion of water- tight evidences, under possession, will prove  beyond doubt how incapable, corrupt and

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worthless is the present Chief Justice of the  Supreme Court."

                               (emphasis supplied)

4.      The apparent course for the tirade, as appears from the  petition itself is an order dated 16.4.2004 in SLP No.6751 of  2004.  The letter purported to have been written by one  Sharmista Das to the President of India was annexed to the  petition. Some portion of the letter forms part of the petition.  Finding this statement in the IA to be contemptuous, notice  was issued to the contemnor to show cause as to why  proceedings for contempt shall not be initiated. Contemnor  filed his reply to the notice. Certain statements in the reply  were found to be more contemptuous, particularly para 4  thereof.  Even though the contemnor wanted to withdraw the  IA and tender regrets, it was not considered desirable to accept  the prayer.  Therefore, by order dated 2.5.2006 the matter was  adjourned granting the contemnor opportunity to appear and  file further reply/affidavit if he wanted to do so.

5.      By order dated 26.2.2007, it was observed as follows:

"In the application reference was made to some  parts of the letter purportedly written by  respondent no.4. At this juncture it is relevant  to note that the name of respondent no.4 was  deleted at the request of the appellant.  In the  show cause reply the contemnor made  allegations against numerous judicial officers  (Judges), stating that they are as immoral,  inefficient, incompetent and bribe-takers.  The  said statement was felt to be contemptuous by  this Court and the contemnor was put to  notice as to why action shall not be taken for  making the statement.  At this juncture it is  also necessary to refer to some other parts of  the "affidavit part-I (reply)" filed by the  contemnor which are per se contemptuous. He  has stated as follows at para 7:

(1) "The allegation in this case was irrelevant  and uncalled for as the truth was far from the  spirit of the highly biased observation."                                                                                 (underlined for emphasis)

       This was with respect to the order passed  on 23.2.2006 by this Court while dealing with  the appeal.  

(2) It is stated at para 14 that the case was  "Unprecedentedly taken away/diverted from  the court of one Hon’ble Judge who dealt with  the case more than anybody else.  It is stated  that "numerous legal practitioners in the  Supreme Court raised their eyebrows" because  of this.  The contemnor has made a statement  that only the Judge who granted leave is  entitled to hear the civil appeal.   

(3) It is also to be noted that allegations have  been made against the Judges of the Guwahati  High Court that they got eliminated witness,  Smt. Ila Rani Das by stooping low.

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  (4) The contemnor in para 12 has also made a  statement that the unfair means were adopted  by the appellant and his counsel in misleading  the Judges which would be clear if paras 8 and  9 of the judgment dated 14.11.2003 of the  Guwahati High Court in Review Petition No.  76/2002 are perused.

As noted above, the statements are per se  contemptuous.  The contemnor who is present  in Court is directed to show cause within a  period of three weeks as to why action for  contempt shall not be taken against him for  making aforesaid statements.   

The matter shall be listed on 26th March,  2007, when the contemnor shall appear in  person.  Ordered accordingly".                                 6.      At this juncture, it would be necessary to quote para 4 of  the reply filed by the contemnor.  The same reads as follows:

"4.     The deponent had personally met Hon’ble  Chief Justice of India in his officer Chamber on  6.8.2001 and submitted to His Lordship a  memorandum relating to judicial corruption  and offered his cooperation to prove that  numerous judicial officers (Judges) are  immoral, inept, inefficient, incompetent and  bribe-takers. "

                                       (emphasis supplied)

7.      When the matter was taken up for hearing on 15.2.2007,  the contemnor stated that though he had signed the IA in  question he did not know the contents as well as the contents  of  the accompanying letter. He further stated that he is in a  position to justify the statement in para 4 of the show cause  reply.  It was further stated by him that he had made similar  allegations against certain Judges of the Guwahati High Court  and though initially contempt proceedings were initiated, they  were dropped. This according to him was proof of the fact that  the Guwahati High Court accepted that whatever allegations  he had made touching the integrity of the Judges were correct.

8.      He stated that contempt criminal No.9/2001 was  initiated against him by the High Court as he alleged  corruption against the then Chief Justice R.S. Mongia,  Justices Iqbal Ahmad Ansari, A.K. Pattanaik, N.S. Singh, G.N.  Sharma and a District Judge and Additional District  Magistrate and others. It appears that the High Court perused  the record and the earlier orders passed by the Court and  taking "overall view of the entire matter", felt that there was no  need to peruse further and need to be closed.  

9.      The contemnor who appeared in person submitted before  us that if he has committed any mistake, he may be excused  and that he was offering unconditional apology.  At the same  time he asserted that he would be in a position to substantiate  the allegations in para 4 of the affidavit filed by him, and the  allegations against the then Judges. He also filed an affidavit  for "expeditious rectification of the judgment dated 21.3.2006".  It is to be noted that after the judgment was delivered a review

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application was filed which was dismissed. The affidavit  appeared to be a further attempt in abusing the process of the  Court.  

10.     Further, the contemnor has made a malicious allegation  that the appeal should not have been heard by a Bench  different from the one which granted leave. His affidavit in this  regard reads as follows:

       "It is also pertinent to mention here with  both Hon’ble Chief Justice Y.K. Sabharwal and  Hon’ble Mr. Justice K.G. Balakrishnan told the  deponent that the case only be listed in the  Court of the Justice who granted leave as a  matter of unwritten rule when the deponent on  different occasions tried to get the case  mentioned in their respective courts. Both said  that only Justice G.P. Mathur can consider it.

       It is worth mentioning that Hon’ble  Registrar General Mr. Jain himself told the  deponent that Hon’ble Justice G.P. Mathur  who granted leave is only entitled to hear the  Civil Appeal.

       But when the case was unprecedentedly  taken away/diverted from the court of Justice  G.P. Mathur who dealt with the case more  than anybody else, numerous legal  practitioners in the Supreme Court raised their  eyebrows."          

11.     At the outset, we may say that though the contemnor  claim to be an illiterate, various petitions filed by him show  that he is really not so.  Reference has been made by him to  various decisions, quotations from authorities while he argued  the cases in person for some of the parties in the Civil Appeal  and before the High Court.  May be that somebody else is  behind him, but that does not in any way dilute the gravity of  the acts done by him.

12.     There is guarantee of the Constitution of India that there  will be freedom of speech and writing, but reasonable  restriction can be imposed. It will be of relevance to compare  the various suggestions as prevalent in America and India. It  is worthwhile to note that all utterances against a Judge or  concerning a pending case do not in America amount to  contempt of Court. In Article 19 the expression "reasonable  restrictions" is used which is almost at par with the American  phraseology "inherent tendency" or "reasonable tendency". The  Supreme Court of America in Bridges v California (1911) 86  Law Ed. 192 said: "What finally emerges from the clear and  present danger cases is a working principle  that the substantive evil must be extremely  serious and the degree of imminence extremely  serious and the degree of imminence extremely  high before utterances can be punished."

The vehemence of the language used is not alone the measure  of the power to punish for contempt of Court. The fires which  it kindles must constitute an imminent, not merely a likely,  threat to the administration of justice. The stream of  administration of justice has to remain unpolluted so that

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purity of Court’s atmosphere may give vitality to all the organs  of the State. Polluters of judicial firmament are, therefore  required to be well taken care of to maintain the sublimity of  Court’s environment; so also to enable it to administer justice  fairly and to the satisfaction of all concerned. To similar effect  were the observations of Lord Morris in Attorney General v.  Times Newspapers 1974 AC 273 at page 302. It was observed  that when unjustifiable interference is suppressed it is not  because those charged with the responsibilities of  administration of justice are concerned for their own dignity, it  is because the very structure of ordered life is at risk if the  recognised Courts of the Land are so flouted and their  authority wanes and is supplanted.

13.     There is no doubt that the Court like any other  institution does not enjoy immunity from fair criticism. No  Court can 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 to be in possession of all truth to hold that  wherever others differ from them are in 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 more than others.  While fair and temperate criticism of the Court even if strong,  may not be actionable, but attributing improper motives or  tending to 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 be 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 Court, administration of justice  and the instruments through which the administration acts,  should take heed for they will act at their own peril. To similar  effect were the observations of Hidayatullah, C.J., (as the  learned judge was then) in R.C. Cooper v. Union of India  (AIR 1970 SC 1318).  

14.     There is an abundance of empirical decisions upon  particular instances of conduct which has been held to  constitute contempt of Court. We shall now refer to a few. Lord  Russel of Killowen, L.C. J, has laid down in Reg v. Gray  1900(2) QB 36 at 40 as follows: "Any act done or writing published calculated  to bring a Court or a Judge of the Court into  contempt, or to lower his authority, is a  contempt of Court."

15.     It cannot be denied that judgments are open to criticisms  and in the said case it was observed : "Judges and Courts are alike open to criticism  and if reasonable argument or expostulation is  offered against any judicial act as contrary to  law or public good, no Court could or would  treat that as contempt of Court". Indeed,  Section 5 of the Act now provides that a person  shall not be guilty of contempt of Court for  publishing any fair comment on the merits of  any case which has been heard and finally  decided. But, if such a defence is taken, it is  always open to test whether the publication  alleged to be offending was by way of fair  comment on the merits of the case or was  personal scurrilous abuse of a Judge as a

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Judge, for abuse of a Judge or a Court or  attacks on the personal character of a Judge  are clearly punishable contempt. As stated in  para 2 at page 21 of Volume-9 of Halsbury’s  Laws of England; Fourth Edition, "The  punishment is inflicted, not for the purpose of  protecting either the Court as a whole or the  individual Judges of the Court from a  repetition of the attack, but of protecting the  public, and specially those who either  voluntarily or by compulsion are subject to the  jurisdiction of the Court, from the mischief  they will incur if the authority of the tribunal  is undermined or impaired."

16.     The view was echoed by this Court in Re. D.C.  Saxena  v. CJI (AIR 1996 SC 2481) In the same volume of Halsbury’s  Laws of England at para 27 it is stated thus: "Any act done or  writing published which is calculated to bring a Court or a  Judge into contempt or to lower its authority or to interfere  with the due course of justice or the lawful process of the  Court, is a contempt of Court."

17.     The above proposition has been approved and followed by  Lord Atkin in Andrew Paul Terence Ambrad v. The Attorney  General of Trinidad and Tobago, (AIR 1936 PC 141). It was  observed as follows: "No wrong is committed by any member of the  public who exercised the ordinary right of  criticism in good faith in private or public the  public act done in the seat of justice. The path  of criticism is public way, the wrong headed  are permitted to err therein, provided that  members of the public abstain from imputing  improper motives to those taking part in the  administration of justice and are genuinely  exercising a right of criticism and not acting in  malice or attempting to impart the  administration of Justice, they are immune.  Justice is not a cloistered virtue; she must be  allowed to suffer the scrutiny and respectful  even though outspoken comments of ordinary  men":

Lord Justice Donovan in Attorney General v. Butterworth:  1963(1) QB 696 after making reference to Req. V. Odham’s  Press Ltd ex parte A.G.: 1957(1) QB 73 said: "whether or not  there was an intention to interfere with the administration of  justice is relevant to penalty not to quit". This makes it clear  that an intention to interfere with the proper administration of  justice is an essential ingredient of the offence of contempt of  court and it is enough if the action complained of is inherently  likely so to interfere. In Morris v. Crown Office: 1970(1) All  E.R. 1079 page 1081, Lord Denning M.R. said: that the course  of justice must not be deflected or interfered with. Those who  do it strike at the very foundations of our society. In the same  case, Lord Justice Solmon spoke: "The sole purpose of proceedings for contempt  is to give our courts the power effectively to  protect the rights of the public by ensuring  that the administration of justice shall not be  obstructed or prevented."

Frank Further, J. in Offutt v. U.S.: 1954(348) U.S. 11

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expressed his view as follows: "It is a mode of vindicating the majesty of law,  in its active manifestation against obstruction  and outrage."

In Jennison v. Baker : 1972(1) All E.R. 997 at page 1006 it is  stated: "The law should not be seen to sit by limply, while  those who defy it go free, and those who seek its  protection lose hope."

18.     Chinappa Reddy, J. speaking for the Bench in Advocate  General, State of Bihar v. Madhya Pradesh Khair  Industries: (1980 (3) SCC 311) citing those two decisions in  the cases of Offutt and Jennison (supra) stated thus: ".....It may be necessary to punish as a  contempt a cause of conduct which abuses  and makes a mockery of the judicial process  and which thus extends its pernicious  influence beyond the parties to the action and  affects the interest of the public in the  administration of justice. The public have an  interest, an abiding and a real interest, and  vital stake in the effective and orderly  administration of justice, because unless  justice is so administered, there is the peril of  all rights and liberties perishing. The Court  has the duty of protecting the interest of the  public in the due administration of justice and,  so, it is entrusted with the power to commit for   contempt of Court not in order to protect the  dignity of the Court against insult or injury as  the expression "Contempt of Court" may seem  to suggest but to protect and to vindicate the  right of the public and the administration of  justice shall not be prevented, prejudiced,  obstructed or interfered with."

19.     Krishna Iyer, J. in his separate judgment In Re. S.  Mulgaokar: (1978 (3) SCC 339) while giving broad guidelines  in taking punitive action in the matter of contempt of Court  has stated: ".....If the Court considers the attack on the  judge or judges scurrilous, offensive,  intimidatory or malicious beyond condonable  limits, the strong arm of the law must, in the  name of public interest and public justice,  strike a blow on him who challenges the  supremacy of the rule of law by fouling its  source and stream"

20.     In the case of Brahma Prakash Sharma and others v.  The State of Uttar Pradesh: (AIR 1954 SC 10) this Court after  referring to various decisions of the foreign countries as well  as of the Privy Council stated thus: "It 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  embarrassment in the mind of the Judge  himself in the discharge of his judicial duties.  It is well established that it is not necessary to

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prove affirmative that there has been an actual  interference with the administration of justice  by reason of such defamatory statement; it is  enough if it is likely or tends in any way to  interfere with the proper administration of  law."

21.     It may be noted here that in the illustrated case Re: S.  Mulgaokar’s case (supra) it was held that the judiciary cannot  be immune from criticism. But, when such criticism is based  on obvious distortion or gross mis-statement and make in a  manner which seems designed to lower respect of the judiciary  and destroy public confidence in it, it cannot be ignored.

22.     Though certain imputations against the Judge may be  only libelous against that particular individual, it may at times  amount to contempt also depending upon the gravity of the  allegations. In Brahma Prakash Sharma’s case (supra) this  Court held that a defamatory attack on a Judge may be a libel  so far as the judge is concerned and it would be open to him to  proceed against the libellor in a proper action if he so chooses.  If, however, the publication of the disparaging statement is  calculated to interfere with the due course of justice or proper  administration of law by such Court, it can be punished  separately as contempt. The same view has been taken in  Perspective Publications (P) Ltd v. The State of  Maharashtra (AIR 1971 SC 221) and C.K. Daphtary and  others v O.P. Gupta and others (AIR 1971 SC 1132).  Therefore, apart from the fact that a particular statement is  libelous, it can constitute criminal contempt if the imputation  is such that the same is capable of lowering the authority of  the Court. The gravity of the aforesaid statement is that the  same would scandalize the court.

23.     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 willfully or  maliciously misrepresent the position of the Court, or tend to  bring it into disrespect, or lessen the respect due to the  authority to which a Court is entitled, cannot be questioned.  The right of free speech is one of the greatest guarantee to  liberty in a free country like ours, even though that right is  frequently and in many instances outrageously abused. If any  considerable portion of a community is led to believe that  either because of gross ignorance of the law or because of a  wrong reason, it cannot rely upon the courts to administer  justice that portion of the community, upon some occasion, is  very likely to come to the conclusion that it is better not to  take any chances on the courts failing to do their duty.  

24.     Judiciary is the bed rock and handmaid of democracy. If  people lose faith in justice parted by a Court of law, the entire  democratic set up would crumble down. In this background,  observations of Lord Denning M.R. in Metropolitan  Properties Ltd. v. Lennon (1968) 3 All E.R. 304 are  relevant: "Justice must be rooted in confidence, and  confidence is destroyed when right minded people go away  thinking - the Judge is based."

25.     Considered in the light of the aforesaid position in law, a  bare reading of the statements makes it clear that those  amount to a scurrilous attack on the integrity, honesty and  judicial competence and impartiality of judges. It is offensive

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and intimidating. The contemnor by making such scandalising  statements and invective remarks has interfered and seriously  shaken the system of administration of justice by bringing it  down to disrespect and disrepute. It impairs confidence of the  people in the Court. Once door is opened to this kind of  allegations, aspersions and imputations, it may provide a  handle to the disgruntled litigants to malign the Judges,  leading to character assassination. A good name is better than  good riches. Immediately comes to one’s mind Shakespeare’s  Othello, Act II, Scene 3, 167:-

"Good name in man and woman, dear my Lord   is the immediate jewel of their souls;   who steals my purse, steals trash;   its something, nothing; ’T was mine, its his,  and has been slate to thousands; But he that  filches from me my good name,

Robs me of that which not enriches him  And makes me poor indeed."

26.     Majesty of Law continues to hold its head high  notwithstanding such scurrilous attacks made by persons who  feel the law Courts will absorb anything and every thing,  including attacks on their honesty, integrity and impartiality.  But it has to be borne in mind that such divinity and  magnanimity is not its weakness but its strength. It generally  ignores irresponsible statements which are anything but  legitimate criticism. It is to be noted that what is permissible is  legitimate criticism and not illegitimate insinuation. No Court  can brook with equanimity something which may have  tendency to interfere with the administration of justice. Some  people find judiciary a soft target because it has neither the  power of the purse nor the sword, which other wings of  democracy possess. It needs no reiteration that on judiciary  millions pin their hopes, for protecting their life, liberty,  property and the like. Judges do not have an easy job. They  repeatedly do what rest of us (the people) seek to avoid, make  decisions, said David Pannick in his book "Judges". Judges  are mere mortals, but they are asked to perform a function  which is truly divine.

27.     What is contempt of Court has been stated in lucid terms  by Oswald in Classic "Book on Contempt of Court". It is said: "To speak generally, contempt of court may be  said to be constituted by any conduct that  tends to bring the authority and  demonstration of law into disrespect and  disregard or to interfere with or prejudice  parties, litigant or their witnesses during the  litigation." "Contempt in the legal acceptance of the term,  primarily signifies disrespect to that which is  entitled to legal regard, but as a wrong purely  moral or affecting an object not possessing a  legal status, it has in the eye of the law no  existence. In its origin all legal contempt will  be found to consist in an offence more or less  direct against the sovereign himself as the  fountainhead of law and justice or against his  palace where justice was administered. This  clearly appears from old cases."

28.     Lord Diplock, speaking for the Judicial Committee in

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Chokolingo v. Attorney General of Trinidad and Tobago  (1981) 1 All E.R. 244, summarized the position thus:  "Scandalising the Court is a convenient way of describing a  publication which, although it does not relate to any specific  case either part of pending or any specific Judge, is a  scurrilous attack on the judiciary as a whole which is  calculated to undermine the authority of the Courts and  public confidence in the administration of justice. Thus, before  coming to the conclusion as to whether or not the publication  amounts to a contempt, what will have to be seen is, whether  the criticism is fair, temperate and made in good faith or  whether it is something directed to the personal character of a  Judge or to the impartiality of a Judge or court. A finding, one  way of the other, will determine whether or nor the act  complained of amounted to contempt."

29.     Mahajan, J in Aswini Kumar Ghose v. Arabinda Bose,  (AIR 1953 SC 75), observed as follows:- "No objection could have been taken to the  article had it merely preached to the Courts of  law the sermon of divine detachment. But  when it proceeded to attribute improper  motives to the Judges, it not only transgressed  the limits of fair and bona fide criticism but  had a clear tendency to affect the dignity and  prestige of this Court..... It is obvious that if an  impression is created in the minds of the  public that the Judges in the highest Court of  the land act on extraneous considerations in  deciding cases, the confidence of the whole  community in the administration of justice is  bound to be undermined and no greater  mischief than that can possibly be  imagined..... We would like to observe that it is  not the practice of this Court to issue such  rules except in very grave and serious cases  and it is never over-sensitive to public  criticism; but when there is danger of grave  mischief being done in the matter of  administration of justice, the animadversion  cannot be ignored and viewed with placid  equanimity....."

30.     There can be no quarrel with the proposition that anyone   who intends to tarnish the image of judiciary should not be  allowed to go unpunished. By attacking the reputation of  Judges, the ultimate victim is the institution. The day the  consumers of justice loose faith in the institution that would  be the darkest day for mankind. The importance of judiciary  needs no reiteration.  

31.     When the background facts highlighted above are  considered in the background of the principles set out above,  the inevitable conclusion is that the contemnor deserves no  sympathy. In fact, the lenient approach of the Guwahati High  Court seems to have encouraged him to make statements on  oath tarnishing the image of the Judges of the highest  judiciary.  His apology seems to be not genuine. This is more  so because he wanted to justify the statements  made in  para 4.

32.     Therefore, we find the contemnor guilty of contempt.  He  is sentenced to undergo imprisonment for a period of two  months. He shall be taken into custody and sent to Tihar Jail,  New Delhi, forthwith to serve the sentence awarded.

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33.     The contempt proceedings stand disposed of.