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PETITIONER: M.R. PARASHAR AND ORS.

       Vs.

RESPONDENT: DR. FAROOQ ABDULLAH AND ORS.

DATE OF JUDGMENT31/01/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1984 AIR  615            1984 SCR  (2) 760  1984 SCC  (2) 343        1984 SCALE  (1)136

ACT:      Contempt of Courts Act, 1971-Publication in a newspaper of allegation  of  Contempt  of  Court  by  Chief  Minister- Requisite proof  not furnished-No record of speech produced- Whether could be committed for contempt.

HEADNOTE:      A  news   item  appeared  in  the  newspaper  of  which respondent No.  2 was  its editor,  that while  addressing a rally of  Judicial Employees’ Welfare Association, the Chief Minister of  Jammu and  Kashmir denounced  and ridiculed the judiciary stating  that "Justice is being bought in judicial Courts" and  that he  would never  honour the  Court’s  stay orders because  justice could be bought with money. The news item also  stated that  the  Chief  Minister  expressed  his regret to  the Chief  Justice  and  other  Judges  who  were present at  the meeting,  explaining that  the strong  words used by him were the voice of his conscience and that he had the greatest regard for the judiciary.      The petitioner  filed the contempt petition against the Chief Minister.      Although a  show cause  notice  was  issued  under  the Contempt  of   Courts  Act   1971  to   the  Chief  Minister (respondent) on  March 18,  1983  no  counter-affidavit  was filed till  September 26,  1983. When  the contempt petition was called  out on that day his advocate accepted the notice on behalf of the respondent. Eventually on November 21, 1983 the affidavit  of the  Chief Minister dated November 9, 1983 was taken on record.      While  the   Chief  Minister  denied  having  made  the statements attributed  to him,  the Editor asserted that the version published in the newspaper was true.      On the question whether the statements published in the newspaper amounted to contempt of court.      Dismissing the petition, ^      HELD:  What  is  involved  in  this  case  is  criminal contempt  and   therefore  it  is  necessary  to  apply  the particular standard of proof required to be established in a criminal case.  Respondent, No.1,  on the material placed on record, cannot be held to be guilty of the charge. [764F] 761

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    In matters  involving allegations of criminal contempt, the Court has to act both as a prosecutor and as a Judge. It does so to uphold the authority of law and not in defence of a particular Judge. Secondly, the right of free speech is an important right  of the  citizen and  bona fide criticism of any  system   or  institution   is  aimed  at  inducing  the administrators of that system or institution to look inwards and improve  its public  image. Courts do not like to assume the posture  that they are above criticism. At the same time though   law   does   not   restrain   the   expression   of disapprobation against  what is done in or by Courts of law, the liberty  of free expression is not to be confounded with a  licence  to  make  unfounded  allegations  of  corruption against the  judiciary. The  abuse of  the liberty  of  free speech and  expression carries  the case  nearer the  law of contempt. Those  who criticise  the judiciary  must remember that  they   are   attacking   an   institution   which   is indispensable for  the survival of the rule of law but which has no  means of  defending itself.  Therefore, Judges  must receive the  protection of  law from  unfounded  attacks  on their character. [765H; 766A, B-E; F-G]      If the Chief Minister said what was alleged in the news item he  was in  contempt; if  he had  not, the  Editor  had committed a  contempt by  publishing a  false  report  of  a scurrilous speech that was never made. In the face of denial by one  and an  assertion by  the other  without more, it is difficult to  decide who  is right.  On the  one hand is the tendency to  ridicule the system of justice and malign those who administer  it, on  the other  is the  propensity of the fourth estate  for some  little sensation  and its political involvement.  When   political  considerations  pollute  the stream of  life, sifting  truth  from  falsehood  becomes  a formidable and forbidding task. In these circumstances it is difficult to  record a  positive finding that the allegation that the  Chief Minister  made the  particular statement  is proved beyond a reasonable doubt. [764D-F]      Although the  petitioners had  asserted that the Judges of the  High Court  were present at one of the functions and that they  walked out  of the meeting on hearing the abusive language used  by the  Chief Minister no attempt was made to establish the  truth of  that assertion. A walkout by Judges of the High Court during the speech of the Chief Minister or soon thereafter  would have  lent considerable weight to the allegation that  the statements  made by  the Chief Minister were open to grave objection. [764G-H]      When a Chief Minister makes a formal speech an official record of  the speech, if it were a prepared speech, or even if it  were an  extempore speech,  should have been kept. No one taped or took down the speeches of a person as important as   the    Chief   Minister.   No   written   record   kept contemporaneously  or   prepared  soon  after  is  cited  to contradict  the   allegation   that   the   Chief   Minister scandalised the Courts and assailed the character of Judges. [765B-D]

JUDGMENT:      ORIGINAL JURISDICTION:  Contempt Petition  No. 8118  of 1983.      Under Art. 129 of the Constitution read with Section 15 of the Contempt of Court’s Act, 1971. 762      Subhash Sharma, N. M. Popli and K. R. R. Pillai for the petitioner.

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    S. N. Kacker and Altaf Ahmad for Respondent No. 1.      M. C.  Bhandare E.  C. Agarwala and Mrs. Indira Sawhney for Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, C.J.  This is  a petition  asking that the respondents be committed for contempt for certain statements allegedly made by Respondent 1, who is the Chief Minister of Jammu and Kashmir. Respondent 2 is the Editor of a newspaper called Daily  Kashmir Times  in which  those statements were published, while Respondent 3 is its correspondent.      In the  issue of the Daily Kashmir Times dated November 13, 1982,  a news  item appeared  under the caption "CM asks engineers to  forcibly occupy  club building".  According to the report,  the Chief Minister, while addressing the annual general meeting of the Institute of Engineers, said that the engineers should  occupy a  certain building  forcibly as it would not  be possible for them to evict the Amar Singh Club through the  normal legal  process and that he would provide the necessary police assistance for that purpose. The report says that  the  Chief  Minister  advised  the  Institute  of Engineers  to   move  quickly   in  the  matter  before  the management of  the Club  could obtain  a stay order from the Court.      Another news  item appeared  in the  same newspaper  on November 23,  1982 under the caption "Chief Minister says he will never  accept courts’  stay orders".  According to  the report, the  Chief Minister,  while addressing  a  rally  of Judicial  Employees’   Welfare  Association,  denounced  and ridiculed the  judiciary by  saying that  "justice is  being bought in  the judicial  courts". Taking  exception  to  the frequent stay  orders  issued  by  the  Courts  against  the Government, the  Chief Minister  is alleged to have said: "I will never  honour these  stay orders  even if I am hanged", that justice  could be  bought with money and that this task could be  performed conveniently  by any leading lawyer. The news item concludes by saying that later, the Chief Minister expressed his  regret to  the Chief Justice and other Judges of  the   High  Court  who  were  present  at  the  meeting, explaining that  the strong words used by him were the voice of his conscience but, otherwise, he had the greatest regard 763 for the judiciary, and that he only wanted quick justice for the people.      On March  18, 1983 a notice was issued by this Court to the respondents  asking them  to show cause why action under the Contempt of Courts Act, 1971 should not be taken against them. Since  one of  the respondents is a Chief Minister, we assumed that  there would  be no  difficulty in  serving the notice upon  him and  he would  file his  reply promptly, in view of the seriousness of the allegations made against him. But, until September 26, 1983 no counter-affidavit was filed in the  matter. When the Contempt Petition was called out on that date, Mr. Altaf Ahmed, accepted the notice on behalf of the Chief  Minister. On  that date,  the Court  directed the Chief Minister  to file  his counter-affidavit  within  four weeks. On  October 21,  1983 the Registry submitted a report to the  Court that  Mr. Altaf  Ahmed had  not yet  filed his appearance for  the Chief  Minister. On November 21, 1983 an affidavit dated  November 9,  1983 of the Chief Minister was taken on  record. Since  the Chief  Minister denied  by that affidavit that he had made the kind of statements attributed to him,  we issued  a specific  direction that Respondent 2, the Editor  of Daily  Kashmir Times, should appear in person before the  Court on November 28, 1983. That was with a view to obtaining his explanation as to how the newspaper came to

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publish the  various statements  which  the  Chief  Minister denied he had ever made.      Respondent 2  appeared before  us on  November 28, 1983 and stuck  to the version published in the newspaper. In the light of that, we reverted to the counter-affidavit filed by the Chief  Minister when  we found  that it did not traverse the  allegations   of  the  petitioners  satisfactorily.  We therefore directed  him to  file a further affidavit dealing with the  allegations against  him clearly and specifically. In pursuance  of  that  direction,  Respondent  I  filed  an affidavit dated December 14, 1983.      By his  affidavit dated  January 9,  1984, Respondent 2 has adhered  to his  original stand  that the  report  which appeared in  the Daily  Kashmir Times  was true and correct. According to  him, the  Chief Minister  did make the various statements complained of and that his denial is untrue.      If we  were satisfied  that the Chief Minister had made the statements  attributed to  him, it  would  have  been  a serious matter.  Then,  we  could  not  have  dismissed  the peroration as an ill-tempered 764 outburst of  an  uninformed  person.  Considering  the  high position which  Chief Ministers occupy in the public life of our country, their words and deeds have to be presumed to be intended. The  defence that  what was  said or  done was not intended is  not  open  to  persons  occupying  high  public offices. The  formal expression  of regard  for  the  courts under the  pressure of  a contempt  notice  becomes  a  mere escape if  speeches and writings betray defiance of judicial authority and  constitute an  exhortation to  the public  to disregard orders  passed by  courts. But, the Chief Minister denies to have made the utterances, as stoutly as the editor asserts that  the reports  of the  speeches published in his newspaper are  true. There  is word  against  word,  and  no preponderating circumstance  which, objectively, compels the acceptance of  the word of one in performance to the word of the other.  We have  two responsible  persons before  us who pursue honourable  professions: one is the Chief Minister of a State  and the  other is  the editor  of a newspaper. Both cannot be  true in  their contentions before us. One of them has clearly  violated the  law of  contempt.  If  the  Chief Minister said  what is alleged, he is in contempt. If he has not, the editor has committed contempt by publishing a false report of  a scurrilous  speech that was never made. In face of denial by one and an assertion by the other without more, it is  difficult to  decide who is right. On one hand is the tendency to  ridicule the system of justice and malign those who administer  it. On  the other  is the  propensity of the fourth estate  for some  little sensation  and its political involvement.  When   political  considerations  pollute  the stream of  life, sifting  truth  from  falsehood  becomes  a formidable and  forbidding task  In these  circumstances, we are unable  to record a positive finding that the allegation that the  Chief Minister  made the  particular statements is proved beyond  a reasonable  doubt. What is involved in this petition  is   criminal  contempt   and,  therefore,  it  is necessary to apply that particular standard of proof.      There is one circumstance which puts us on our guard in accepting the  contempt petition.  That circumstance is that though, during the course of arguments, it was stated at the Bar on  behalf of the petitioners that the learned Judges of the Jammu  & Kashmir  High Court  were present at one of the functions and that they walked out of the meeting on hearing the ’abusive’  language  used  by  the  Chief  Minister,  no attempt was made to establish the truth of that assertion. A

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walk-out by  Judges of  the High  Court during the speech of the Chief  Minister or  soon after  he ended  it, would have lent  considerable   weight  to   the  allegation  that  the statements made  by the  Chief Minister  were open  to grave objection. 765      But we  record the  finding  of  ’not  guilty’  with  a caveat. It  is not  for us to advise a chosen representative of the people as to how he should conduct his public affairs and what  precautions he  should take  in order  to  protect himself from  similar allegations  in future. But, it causes us some surprise that there is on official record whatsoever of the  speeches made  by the  Chief  Minister  at  the  two functions. He was invited at those functions in his capacity as the  Chief Minister.  And admittedly,  he spoke  at those functions. With  the little  knowledge that we have of these matters, we  suppose that  when a  Chief  Minister  makes  a formal speech, an official record of the speech is generally available. If he speaks from a prepared text, that forms the record of  what he spoke. But, whether he speaks from a text or speaks  extempore, it  is unlikely, in the times in which we live,  that a speech made by a Chief Minister on a formal occasion will not be taken down or tape-recorded. Tapes have become a  part of our life, public and private, sometimes to the point  of annoyance.  In times  when mechanical  gadgets have become  the order  of the day and ’taping’, especially, has become  a common  practice, it is surprising that no one taped or  took down the speeches of a person as important as the   Chief    Minister.    No    written    record,    kept contemporaneously  or  prepared  soon  after,  is  cited  to contradict  the   allegation   that   the   Chief   Minister scandalized the Courts and assailed the character of Judges. As we said, it is not for us to advise any one, least of all those   who,    in   the    discharge   of   their   onerous responsibilities, have  their own  select group of advisers. But, we  cannot restrain  the observation that it is so much safer  for   persons  who   have  to  make  frequent  public appearances to  have their  utterances duly  put  on  paper, before of  soon after  the event. For those who have nothing to conceal  or fear, that is a prudent course of action. For the rest,  a constant  friction with  the law of contempt is inevitable. The former will lay their cards on the table and be cleared.  The latter  have to  live in  the hope that the rigorous standard  of ’proof beyond a reasonable doubt’ will act as  their saviour.  The latter  course of conduct leaves much to  be desired from the point of view of men of honour. Courts are not astute to reason to their power to punish any one for criminal contempt. But that reluctance should not be overtaxed.      The reluctance of courts to resort to the provisions of the Contempt of Courts Act springs from their regard for the rule of  law. The  role of a prosecutor is incompatible with the role  of a  judge. In  matters involving  allegations of criminal contempt of Court, these roles are combined and the Court has to act both as a 766 prosecutor and  as a  judge. True,  that it acts in order to uphold the  authority of  law and  not in defence of this or that particular  judge. But  an order punishing a person for such contempt is likely to create the impression, more so in the mind  of lay  observers, that  the judges  have acted in defence of  themselves. Courts do not like to create such an impression even  unwittingly. Secondly,  the right  of  free speech is an important right of the citizen, in the exercise of which he is entitled to bring to the notice of the public

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at large the infirmities from which any institution suffers, including institutions which administer justice. Indeed, the right to  offer healthy  and constructive criticism which is fair in  spirit must  be left  unimpaired in the interest of public institutions  themselves. Critics  are instruments of reforms, not  those actuated  by malice  but those  who  are inspired by  the spirit  of public weal. Bona fide criticism of any  system or  institution  is  aimed  at  inducing  the administrators of that system or institution to look inwards and improve  its public  image. Courts do not like to assume the posture  that they  are above  criticism and  that their functioning needs  no improvement.  But it  is necessary  to make  it  clear  that  though  law  does  not  restrain  the expression of  disapprobation against  what is done in or by courts of  law, the  liberty of free expression is not to be confounded with  a licence  to make unfounded allegations of corruption against  the judiciary.  The abuse of the liberty of free  speech and  expression carries  the case nearer the law of contempt.      We would  also like  to remind  those who criticise the judiciary that  it has no forum from which to defend itself. The legislature  can act in defence of itself from the floor of the  House. It  enjoys privileges  which are  beyond  the reach of  law. The  executive is  all powerful and has ample resources and  media at  its command  to explain its actions and, if  need be,  to counter-attack.  Those who  attack the judiciary  must   remember  that   they  are   attacking  an institution which  is indispensable  for the survival of the rule of  law but  which has no means of defending itself. In the very  nature of  things, it  cannot engage  itself in an open war, nor indulge in releasing contradictions. The sward of justice is in the hands of the Goddess of Justice, not in the hands  of mortal  judges. Therefore, Judges must receive the due  protection of  law from  unfounded attacks on their character.      The Chief  Minister has stated in his affidavit that he spoke extempore.  We are  not on  that. In  the first place, extempore speeches confer no greater immunity on the speaker than the 767 speeches  made  from  prepared  texts.  Secondly,  extempore speeches are  not to  be made  without the  application of a careful mind.  That is  not the  definition of  an extempore speech. Thirdly,  more the  extempore, greater  the need  to keep a  written record  of the  spoken word.  In the written record lies  the safety  of the  public speaker, though not, perhaps, the benefit of posterity.      In the result, we dismiss the contempt petition. P.B.R.                                  Petition dismissed. 768