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PETITIONER: PERSPECTIVE PUBLICATIONS (P) LTD. & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 19/11/1968

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1971 AIR  221            1969 SCR  (2) 779  CITATOR INFO :  R          1971 SC1132  (53)  R          1972 SC 989  (8,10,11)  E&R        1978 SC 727  (42)  F          1978 SC 921  (12,15)  RF         1992 SC 904  (9)

ACT: Contempt of Court--Difference between  defamation  of  judge and  contempt  of court---Judge’s brother  having  financial interest in a firm--If sufficient to establish legal bias.

HEADNOTE: One T filed a suit claiming Rs. 3 lacs  damages  for   libel against a newspaper.  The suit was decreed by a Judge of the Bombay High Court. Thereafter, an article was published in a publication brought out by the first appellant and of  which the second appellant was the editor, printer and  publisher. The   article  contained  insinuations  that  there  was   a connection between a loan of Rs. 10 lacs,  granted to a firm in which the Judge’s brother was a partner, and the judgment m  the defamation case; and that the Judge knew,  about  the loan  having  been granted to the firm.The  appellants  were found guilty of contempt of court. In  appeal to this Court, it was contended that: (1) In  the article no aspersion was cast on the integrity of the  Judge nor  was any imputation of dishonesty made; (2)  Proceedings for   contempt   for   scandallzing  a  Judge  have   become obsolete,  the  proper remedy being for the/judge   to  take action for libel; (3) The allegations were made in the  bona fide  belief  that  they  were truthful  and  there  was  no evidence that the Judge did not know about the  transaction; and  (4) The statements, if at all, amounted to a charge  of bias  against  the Judge and  could  not   be   regarded  as contempt. HELD: (1 ) The obvious implications and institutions made in the  various  paragraphs of the article, read  as  a  whole, create  a strong judicial impact on the mind of  the  reader about the Jack of honesty, integrity and impartiality on the part  of  the Judge in deciding the  defamation  suit.  [785 C---D] It  is  open  to  anyone to  express  fair,  reasonable  and

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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.   But,  if  an  article attributes  improper  motives  to the  Judge,  it  not  only transgresses the limits of fair and bona fide criticism  but has  a clear tendency to affect the dignity and prestige  of the court and would amount to contempt of court. [785 A, 791 F] (2)  It  will  not  be right to   say  that  committals  for contempt  of  court for scandalizing the court  have  become obsolete. [791 D] (a) But such summary jurisdiction  by way  of contempt  must be  exercised with great care and caution and only when  its exercise         is necessary for the proper  administration of law and justice. [791 E]     (b)  There  is  a distinction between a  mere  libel  or defamation   of   a judge and what amounts  to  contempt  of court.   The  tests are: (i) Is the impugned  publication  a mere defamatory  attack. on the Judge or is it calculated to interfere  with  the  due course of Justice  or  the  proper administration  of law by his court? and (ii) Is  the  wrong done  to the  Judge personally or is it done to the  public? The publication of a  disparaging 780 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 courts 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. [791  G--H; 792 A--C]     B.R.  Reddy v. State of Madras, [1952] S.C.R.  425,  Re: The  Editor. Printer and Publisher of the ’Times  of  India’ and  in  re:  Aswini Kumar Ghose v.  Arabinda  Bose,  [1953] S.C.R.  215, Brahm Prakash  Sharma v. State of U.P.,  [1953] S.C.R. 1169; Re: Hira Lal Dixit & Ors. [1955] 1 S.C.R.   677 and  State   of  M.P. v. Revashankar  [1959]  S.C.R.   1367, followed.     Re:  Read and Huggonson, 2 Atk. 471, In the matter of  a Special  Reference from the Bahama Islands [1893] A.C.  138, McLeod v. St. Aubyn, [1899] A.C. 549, Reg. v. Gray, [1900] 2 Q.B.D. 36;  Rex  v.  Editor  of the New Statesman (1928)  44 T.L.R. 301; Ambard v.  Attorney-General    for Trinidad  and Tobago,  (.1936)  A.C. 322, Debi Prasad Sarma .v. The  ’King Emperor. 70 I.A. 216 and  Reg.  v.  Commissioner  of  Police the  Metropolis, Ex parte Blackburn, (1968) 2  W.L.R.  1206, referred to.     (3) Assuming good faith can be held to be a defence in a proceeding  for  contempt, in the present case,  no  attempt was  made  to  substantiate ’that the facts  stated  in  the article  were true or were rounded on correct data.  On  the other hand,  it was  established  that some of the  material allegations were altogether wrong and incorrect. [792 E-F] B.R. Reddy’s case, [1952] S.C:R. 425, referred to.     (4)  The mere fact that his brother happened to  have  a pecuniary  interest in the firm could not per  se  establish that the Judge would also have a financial interest  therein so as to constitute legal bias. [792 H; 793 A]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.159  of 1966.

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   Appeal  by  special leave from the  judgment  and  order dated November 24, 1965 of the Bombay High Court in Criminal Misc. "Application No. 323 of 1965. S.C. A garwala, for the appellant. M.S.K. Sastri and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by     Grover,  J.  This is an appeal from the judgment of  the Bombay  High Court passed in exercise of  ordinary  original civil  jurisdiction  by  which the  ,appellants  were  found guilty of having committed contempt of Mr. Justice  Tarkunde in his judicial capacity and of the court.  Appellant No.  2 D.R.  Goel,  who  is the Editor, Printer  and  Publisher  of Perspective  Publications  (P) Ltd. --appellant No.  1,  was sentenced to simple imprisonment for one month together with fine amounting to Rs. 1,000/-, in default of payment of fine he was to undergo further simple imprisonment 781 for  the same period.  The appellants were also directed  to pay the costs incurred by the State.  On behalf of the first appellant  it has been stated at the bar that the appeal  is not being pressed.     The  background  in  which  the  impugned  article   was published’ on April 24, 1965, in a weekly periodical  called "Mainstream" which is a publication brought out by the first appellant may be set out.  In the year 1960 a suit was filed by  one  Krishnaraj Thackersey against the weekly  newspaper "Blitz"  and  its Editor and others claiming Rs. 3  lacs  as damages  for libel.  The hearing in that suit  commenced  on the original side of the Bombay High Court on June 24, 1964. The  delivery of the judgment commenced on January 19,  1965 and  continued  till  February  12, 1965.   After  June  24, 1964,  that  suit was heard from day to day by  Mr.  Justice Tarkunde.   The suit was decreed in the sum of Rs.  3  lacs. An  appeal  is pending before a division bench of  the  High Court against that judgment.    The  impugned article is stated to have been  contributed by a person under the name of "Scribbler" but appellant  No. 2  has taken full responsibility for its  publication.   Its heading  was  "STORY OF A LOAN and  Blitz  Thackersey  Libel Case".   It  is unnecessary to reproduce the  whole  article which  appears verbatim in the judgment of the  High  Court. The  article has been ingeniously and cleverly worded.   The salient  matters mentioned in the article are  these:  After paying a tribute to the Indian judiciary the writersays that according to the report in  "Prajatantra"  a  Gujarati paper architects   Khare-Tarkunde  Private  Limited   of   Nagpur, hereinafter  called "Khare-Tarkunde" (which is  described  a Firm in the article) got a loan facility of Rs. 10 lacs from the  Bank  of India on December 7, 1964.   The  partners  of Khare-Tarkunde  included the father, two brothers  and  some other  relations  of Justice Tarkunde who awarded  a  decree for  Rs.  3 lacs as damages against Blitz and in  favour  of Thackersey.  It is pointed out that the date on which Rs. 10 lacs  loan  facility was granted by the Bank  of  India  was about  five  and a half months  after  the  Thackersey-Blitz libel  suit  had  begun and just over   six   weeks   before Justice  Tarkunde began delivering  his "marathon  judgment" on  January 19, 1965.  It is then said that for Rs. 10  lacs loan  facility  granted  to Khare-Tarkunde,  the  New  India Assurance Co. stood guarantee and that the two Directors  of the  Bank of India who voted in favour of the credit of  Rs. 10 lacs being granted to Khare-Tarkunde were Thackersey  and Jaisinh Vithaldas (believed to be a relative of Thackersey). Next it is stated that one of the Directors of the New India Assurance  that  stood guarantee for the loan  facility  was

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N.K. Petigara, who was also a senior partner of M/s. Mulla & Mulla Craigie Blunt & Caroe, Solicitors of Thackersey in the Blitz-Thackersey Libel Case before Justice Tarkunde 4 Sup. CI/69--17 782 Emphasis  is  laid on the fact that  Khare-Tarktunde  had  a capital of Rs. 5 lacs only and the balance sheet of the firm of June 1964 revealed indebtedness to various financiers  to the  tune of Rs. 14 lacs.  Thus Khare-Tarkunde is stated  to be "lucky to get against all this a handsome loan of Rs.  10 lacs from the Bank of India". The writer refers to the  Code among  college  teachers and university  professors  of  not examining papers when their own children and near  relatives sit  for examination and adds that Justice Tarkunde  himself will  recognize the rightness of such a Code.  Referring  to the unimpeachable integrity and reputation of judges of  the Bombay  High Court, the writer proceeds to say  "there  must not be allowed to be raised even the faintest whisper of any misgiving  on  that  score."  Paragraph 24  deserves  to  be reproduced :-                     "If  Sri Krishna Thackersey did not  lay               it  bare at the time of the suit that  he  was               one of the sponsors of a contract of which the               judge’s  relations were the beneficiaries,  it               is  up  to the Chief Justice  of  the  Supreme               Court  and  the Bombay  High  Court  including               Justice  Tarkunde  as also the  ever  vigilant               members  of  the  Bar  to  consider  all   the               implications  of these disclosures which  have               distressed  a common citizen like me, so  that               the finest traditions of our judiciary may  be               preserved intact."     A petition was filed before the Bombay High Court by the State of Maharashtra pointing out that the aforesaid article contained  scandalous  allegations  and  was  calculated  to obstruct the administration of justice and constituted gross contempt  of court. The article purported to  state  certain facts relating to the transaction between Khare-Tarkunde and the  Bank  which  were false and  there  were  several  mis- statements and suppression of facts some of which were:                   (a)  The article wrongly stated  that  the               father  of Mr. Justice Tarkunde was a  partner               in Khare Tarkunde; and                   (b)  The  article  falsely  described  the               transaction as a ’loan’ by the Bank to  Khare-               Tarkunde.   In fact the said  transaction  was               only  a  guarantee  given by  the  Bank  which               undertook  to pay to the Govt. any amount  not               exceeding  Rs. 10 lacs in the event of  Khare-               Tarkunde   being   unable   to   perform   its               obligations.   The  Bank  was  secured  by   a               further  guarantee  given by  the   New  India               Assurance  Co. Ltd. undertaking to secure  the               Bank  in the event of the Bank having  to  pay               the said amount or any part thereof.     Appellant  No. 2 who also happens to be a  Director  and Principal  Officer  of the first appellant,  filed  a  reply raising some objec- 783 tions  of  a  legal and technical nature ,and  took  up  the position  that  the impugned article was based on  a  report published  in "Prajatantra" from which all the facts  stated in  the  article were incorporated.  It  was  asserted  that certain ’major facts’ had been verified by the appellant and found  to  be true.  It was admitted that upon  reading  the

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petition  for  taking contempt proceedings it was  found  by appellant No. 2 that there were certain incorrect statements in  the  article. It was claimed that the article  had  been published in a bona fide belief that whatever was stated  in the   article  in "Prajatantra" was true. The intention  was to  convey to the public at large that it was  incumbent  on the plaintiff Thackersey and Pettigara, one of the  partners of  Mulla  &  Mulla etc., his attorneys  to  inform  Justice Tarkunde  that the plaintiff had voted for a  resolution  of the Board of Directors of the Bank of  India  which, without reasonable   doubt,  would  help  Khare-Tarkunde  in   which Tarkunde happened to be a brother of the Judge.     The  High Court analysed the implications of  the  facts stated  in each paragraph of the impugned article  in  great detail  and observed :--                     "  ............  reading the article  as               a  whole,  taking  care not to  read  into  it               anything more than its plain language  implies               and making every allowance for literary  style               and rhetorical flourish expressions which were               often   used   in  the  arguments   for   the.               respondents  it  is impossible  to  avoid  the               conclusions  that  this  article  exceeds  the               bounds of fair and reasonable criticism. In so               far as it suggests that there is some  sort of               casual connection between the granting of  the               loan to M/s. Khare-Tarkunde Pvt. Ltd., and the               judgment of Mr. Justice Tarkunde in the Blitz-               Thackersey case, it clearly attempts to  lower               the learned judge in his judicial capacity not               to mention the fact that it would also tend to               shake the confidence of the lay public in  the               High  Court and impair the due  administration               of justice in  that Court.  In so far as there               is a suggestion made be it ever so faint  that               Mr.  Justice Tarkunde knew or must have  known               of  the loan to his brother’s firm  before  he               delivered  the  judgment  in  the  case,   the               article is malicious and ’not in good faith." The   High  Court  also  examined  the   misstatements   and inaccuracies in the impugned article and held that there was no foundation for the suggestion that Khare-Tarkunde was  an impecunious  concern  and therefore was "lucky" to  get  the handsome loan nor for the suggestion that either  Thackersey and  his co-Directors in the Bank of India  or  Thackersey’s solicitor  and his co-Directors in the New  India  Assurance Co. went out of their way to grant accom- 784 modation to Khare-Tarkunde.  The High Court found no   basis for  the insinuation that there was any  connection  between the  loan and the judgment in the Blitz-Thackersey  case  or that  Justice  Tarkunde knew or might have Known  about  any loan having been granted to his brother’s firm.  No  attempt was  made to justify these suggestions in the return  or  in the  argument before the High Court and all that  was  urged was that the words used by contestable did not give rise  to the said imputations or innuendos and that the contemnor was only  trying to communicate to the public at large what  has been  stated before.  It is needless to refer to  the  other points  raised before and decided by the High Court  because none of them has been argued before us.     In  this  appeal, counsel for appellant no. 2  has  made some attempt to establish that no aspersion was cast on  the integrity  of  Justice Tarkunde in the article nor  was  any imputation of dishonesty made. His second contention is that

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proceedings  for  contempt  for scandalising  a  Judge  have become  obsolete and the  proper remedy in such a  situation is  for the Judge to institute action for libel.    Thirdly, it is said that there was no evidence before the High  Court that Justice Tarkunde did not know about the transaction  or the  dealings  between the firm in which his brother  was  a partner  and  the bank of which Thackersey was  a  director. If,  it  is submitted, the allegations made in  the  article were truthful or had been made bona fide in the belief  that they  were truthful the High Court ought not to  have  found appellant no. 2 guilty of contempt.  At any rate,  according to  counsel,  the statements contained in the  article  only made  out a charge of bias against the Judge and if  such  a charge is made it cannot be regarded as contempt.     On the first point our attention has been invited to the paragraphs  in  the article containing  expression  of  high opinion held by the writer of the judiciary in India.  It is suggested  that  his  attempt was only to make  a  fair  and legitimate  criticism of the proceedings in  the  Thackersey suit against the "Blitz" weekly.  It has been emphasised  in the article that the damages which were awarded to the  tune of Rs. 3 lakhs were almost punitive and that it was a   rare phenomenon that the plaintiff (Thackersey) did not step into the  witness  box and also a permanent injunction  had  been granted preventing Blitz from printing anything based on the subject matter of litigation.  The law involving freedom  of press fully warranted such criticism of a judgment or of the proceedings in a suit in a court of law.     It is true that the writer of the article could exercise his  right of fair and reasonable criticism and the  matters which have been mentioned in some of the paragraphs may  not justify  any  proceedings being taken for contempt  but  the article read as a whole leaves   785 no  doubt  that  the  conclusions of  the  High  Court  were unexceptionable.  It was a skillful attempt on the  part  of the   writer to impute dishonesty and lack of  integrity  to Justice Tarkunde in the matter of Thackersey-Blitz suit, the imputation being indirect and mostly by innuendo that it was on account of the transaction and the dealings mentioned  in the  article that the suit of Thackersey was decreed in  the sum  of  Rs. 3 lakhs which was the full  amount  of  damages claimed  by  Thackersey.  It may be that  the  article  also suggests  that Thackersey and his ,attorneys were  to  blame inasmuch  as  they  did  not  inform  the  Judge  about  the transactions  of Khare Tarkunde with the Bank of India  with which  Thackersey  was  associated  in  his  capacity  as  a director   but   that  cannot  detract  from   the   obvious implications and insinuations made in various paragraphs  of the  article which immediately create a  strong  prejudicial impact  on  the  mind  of the  reader  about  the  lack   of honesty,  integrity and impartiality on the part of  Justice Tarkunde in deciding the Thackersey-Blitz suit.     On  the  second point counsel for appellant  no.  2  has relied  a  great  deal on certain  decisions  of  the  Privy Council-  and  the Australian and American courts.   In  the matter  of a Special Reference from the Bahama Islands(1)  a letter  was  published in a  colonial  newspaper  containing sarcastic  allusions  to a refusal by the Chief  Justice  to accept  ’a gift of pineapples. No judgment was given by  the Privy  Council  but  their lordships made a  report  to  Her Majesty  that the impugned letter though it might have  been made  subject  of  proceedings for libel  was  not,  in  the circumstances, calculated to obstruct or interfere with  the course  of  justice or the due administration of  ,law  and,

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therefore,  did ,not constitute contempt of court.  In  that case there was no question of scandalising the court nor had any  imputation  been  made against  the  Chief  Justice  in respect  of any judicial proceedings pending before  him  or disposed  of in his court.  It is the next decision  of  the Privy Council in McLeod v. St.Aubyn(2) on which a great deal of argument has been built up before us that the courts,  at least  in  England,  have  stopped  committing  anyone   for contempt  for publication of scandalising matter  respecting the  court  after  adjudication as well as  pending  a  case before it.  That case came by way of an appeal from an order of  the Acting Chief Justice St. Aubyn of the Supreme  Court of  St. Vincent committing one McLeod to prison for 14  days for  alleged contempt of court.  It was said inter  alia  in the impugned publication that in Mr. Trifford the public had no  confidence  and  his locus tenons,  Mr.  St.  Aubya  was reducing  the  judicial character to the level of  a  clown. There were several other sarcastic and libelous remarks made about   the   Acting  Chief  Justice.    While   recognizing publication  of scandalous matter of the court itself ,as  a head of contempt of court as (1) [1893] A.C. 138. (2) [1899] A.C. 549. 786 laid  down by Lord Hardwicke in Re: Read  and  Huggonson(1), Lord  Morris  proceeded to make the  oft-quoted  observation "committals  for  contempt of Court ’by itself  have  become obsolete  in  this  country even though  in  small  colonies consisting  principally  of coloured  population  committals might be necessary in proper cases".  Only a year later Lord Russel of Killowen C.J., in The Queen v. Gray(2)  reaffirmed that any act done or  writing  published calculated to bring a court or a judge of the court in contempt, or to lower his authority,  was  a  contempt of court.   The  learned  Chief Justice made it clear that judges and courts were alike open to criticism and if reasonable argument or expostulation was offered against any judicial act as contrary  to law or  the public  good no court could or would treat that as  contempt of court but it was to be remembered that the liberty of the press was not greater and no less than the liberty of  every subject.   In that case it was held that there was  personal scurrilous   abuse of  a judge and it constituted  contempt. All  the three cases which have been discussed  ’above  were noticed by the Privy Council in Debi Prasad Sharma & Ors. v. The  King  Emperor(3) where contempt  proceedings  had  been taken  in  respect  of editorial  comments  published  in  a newspaper  based  or a news item that the Chief  Justice  of Allahabad  High  Court in his  administrative  capacity  had issued a circular to judicial officers enjoining on them  to raise  contributions  to the war fund and it  was  suggested that  he had done a thing which would lower the prestige  of the court in the eyes of the public.  This is what was  said at page 224 :-                     "In In re a Special Reference  from  the               Bahama  Islands  [1893]  A.C.  138,  the  test               applied  by the very strong Board which  heard               the reference was whether the words complained               of  were  in the circumstances  calculated  to               obstruct  or  interfere  with  the  course  of               justice  and  the due, administration  of  the               law.   In Reg. v. Gray [1900] 2Q.B. 36 it  was               shown  that  the offence of  scandalising  the               court itself was not obsolete in this country.               A  very scandalous attack had been made  on  a               judge  for   his   judicial  utterances  while

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             sitting in a criminal case on circuit, and  it               was with the foregoing opinions on record that               Lord  Russel of Killowen C.J.    adopting  the               expression  of Wilmot C.J. in his  opinion  in               Rex v. Almon (1765) Wilmot’s Notes of Opinions               243,  which  is  the source  of  much  of  the               present  law  on  the subject,  spoke  of  the                             article  complained of as calculated to  lower               the authority of the judge." It  is significant that their lordships made  a  distinction between  a  case  where  there had  been  criticism  of  the administrative act of  (1) 2 Ark. 471.  (2) [1900] 2 Q.B.D. 36.  (3) 70 I.A. 216. 787 a  Chief Justice and an imputation on him for  having   done or  omitted to have done something in the administration  of justice. It is further noteworthy that the law laid down  in McLeod   v.  St.  Aubyn(1)  was  not  followed  and  it  was emphasised  that Reg. v. Gray(2) showed that the offence  of scandalising  the court itself was not obsolete in  England. In Rex v. Editor of the New Statesman(3) an article had been published in  the   New  Statesman regarding the verdict  by Mr. Justice Savory given in a libel action brought  by   the Editor  of the "Morning Post" against Dr. Marie Slopes  (the well known advocate of birth control) in which it was  said, inter  alia,  "the serious point in this case,  however,  is that  an  individual owning to such views as  those  of  Dr. Marie Stores cannot ’apparently hope for a fair hearing in a Court  presided over by Mr. Justice Avory--and there are  so many  Avorys".  On behalf of the contemnor McLeod v.  St.  A ubyn(1)  was  sought to be pressed into service.   The  Lord Chief Justice in delivering the judgment  of the Court  said that  the principle  applicable  to such cases was  the  one stated in Reg. v. Gray(2) and relied on the observations  of Lord  Russel  at p. 40.  It was observed  that  the  article imputed  unfairness and lack of impartiality to a  judge  in the  discharge of his judicial duties.  The gravamen of  the offence  was  that by lowering his authority  it  interfered with  the performance of his judicial functions.   Again  in Ambard  v. Attorney  General for Trinidad and Tobago(4)  the law   enunciated   in  Reg.  v. Gray(2) by  Lord  Russel  of Killowen was applied and it was said at page 335:                     "But whether the authority and  position               of   an   individual   judge,   or   the   due               administration  of justice, is  concerned,  no               wrong is committed by any member of the public               who   exercises   the   ordinary   right    of               criticising,  in  good faith,  in  private  or               public,  the  public act done in the  seat  of               justice.   The path of criticism is  a  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  impair 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 spoken, comments of ordinary men." It was, however, held that there was no evidence upon  which

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the court could find that the alleged contemnor had exceeded fair  and  temperate criticism and that he  had  acted  with untruth or malice (1) [1899] A .C. 549. (2) [1900] 2 Q.B.D. 36. (3) [1928] 44 T.L.R. 301. (4) [1936] A.C. 322. 788 and with the direct object of bringing the administration of justice into disrepute.     Lord  Denning M.R. in Reg v. Commissioner of  Police  of the  Metropolis,  Ex parte Blackburn  (No..2)(1)  made  some pertinent  observations  about the right of  every  man,  in Parliament or out of it, in the Press or over the broadcast, to make fair and even outspoken comment on matters of public interest.   In the words of the Master of Rolls, "those  who comment can deal faithfully with all that is done in a court of  justice.   They can say that we are  mistaken,  and  our decisions  erroneous, whether they are subject to appeal  or not.  All we would ask is that those who criticise  us  will remember  that,  from the nature of our  office,  we  cannot reply  to  their  criticism.  We cannot  enter  into  public controversy. Still less into political controversy.  We must rely  on our conduct itself to be its own  vindication."  In that case Mr. Quintin Hogg had written an article in "Punch" in which he had been critical of the Court of Appeal and had even  made  some erroneous statements.  But reading  of  the article  the  salient  passage of which is set  out  in  the judgment  of  the Master of the Rolls makes it  quite  clear that there was no attempt to scandalise the Court and impute any  dishonourable  or dishonest motives or to  suggest  any lack of integrity in any particular Judge.     Oswald  in  his  book  on  the  Contempt  of  Court  has expressed  the view that it would be going a great deal  too far  to  say  that  commitments for  contempt  of  court  by scandalising the Court itself have become obsolete, and that there  does not seem to be any good reason for ignoring  the principles  which  govern the numerous early  cases  on  the subject.     The  American  and the Australian cases  viz.,  John  D. Pennekamp  and The Miami Herald Publishing Co. v.  State  of Florida(2)  and Bell v. Stewart(a) to which  reference  h.as been  made on be-  half of appellant No. 2 can hardly be  of much  assistance  because in this  country  principles  have become crystallized by the decisions of the High Courts  and of  this Court in which the principles followed  by  English Courts have been mostly adopted.     We would now advert to the decisions of this Court.   It was  held  in  Bathina Ramakrishna Reddy  v.  The  State  of Madras(4)  that the fact that the defamation of a Judge of a subordinate court constitutes an offence under s. 499 of the Indian Penal Code did not oust the jurisdiction of the  High Court to take cognizance of the act as a contempt of  court. In  that  .case  in an article in a  Telugu  weekly  it  was alleged  that  the Stationary Sub-Magistrate of  Kovvur  was known to the people of the locality for harassing (1) [1968].2 W.L.R. 1206. (2) 328 U.S. 331. (3 ) 28 Com. L.R. 419. (4) [1952] S.C.R. 425. 789 litigants  in various ways etc. Mukherjea, J., (as  he  then was)  who delivered the judgment described the article as  a scurrilous attack on the integrity and honesty of a judicial officer.   It  was  observed that if  the  allegations  were

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false, they could not undermine the confidence of the public in  the  administration of justice and bring  the  judiciary into  disrepute.   The .appellant there had taken  the  sole responsibility regarding the publication of the article  and was not in a position to substantiate by evidence any of the allegations made therein.  It was held that he could  not be said  to  have acted bona fide, "even if good faith  can  be held  to be a defence at all in a proceeding for  contempt". The decision in Re:  The Editor, Printer  and  Publisher  of "The Times of India"  and In re Aswini Kumar Ghose and  Anr. v.  Arabinda Bose & Anr.(1) is very apposite and may be.next referred  to.  In a leading article in "The Times of  India" on  the  judgment  of this Court in Aswini  Kumar  Ghose  v. Arabinda  Bose  &  Ant.(2)  the burden  was  that  if  in  a singularly  oblique  and infelicitous  manner   the  Supreme Court  had  by a majority decision tolled the knell  of  the much  maligned  dual system prevailing in the  Calcutta  and Bombay  High Courts by holding that the right   to  practise in   any High Court conferred on advocates of   the  Supreme Court   had  made the rules in force in  those  High  Courts requiring  advocates  appearing on the original side  to  be instructed by  attorneys inapplicable to them.  This is what was  said by Mahajan, J., (as he then was) speaking for  the Court:               "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.   The               article in question was thus a gross  contempt               of   court.    It  is  obvious  that   if   an               impression  is  created in the  minds  of  the               public that the judges in the highest Court in               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." The Editor, Printer and Publisher of the newspaper  tendered an  apology which was accepted; but this Court concurred  in the  expression  of views in Ambard v. Attorney  General  of Trinidad(3),   a  passage  from  which  has   already   been extracted.   The guiding principles to be followed by courts in  contempt proceedings were enunciated in  Brahma  Prakash Sharma & Ors. v. The State of (1) [1953] S.C.R. 215. (2) [1953] S.C.R. 1. (3) [1936] A.C. 322. 790 Uttar  Pradesh(1).   The  judgment again  was  delivered  by Mukherjea,  J., (as he then was) and the  English  decisions including those of the Privy Council were discussed.  It  is necessary  to  refer only to the principles  laid  down  for cases  of the present kind i.e. scandalising the court.   It has been observed that there are two primary  considerations which should weigh with the court when it is called upon  to exercise  summary  power in cases of contempt  committed  by "scandalising"  the court itself.  In the first  place,  the reflection  on  the  conduct  or character  of  a  Judge  in reference  to the discharge of his judicial duties would not be  contempt, if such reflection is made in the exercise  of the  right  of  fair and reasonable  criticism  which  every

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citizen  possesses in respect of  public  acts done  in  the seat  of justice.  Secondly, when .attacks or  comments  are made  on  a  Judge or Judges disparaging  in  character  and derogatory  to  their  dignity,  care  should  be  taken  to distinguish  between  what is a libel on a  judge  and  what really  amounts  to  contempt of court.   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 summarily as contempt.  "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 prove   affirmatively   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   is   ,any  way,  to  interfere   with   the   proper administration  of law."  In that case it was held that  the contempt  was  of  a technical  nature.   This   was   based apparently on the reason that the Members of the Bar who had passed  a  resolution  attributing  incompetency,  lack   of courtesy  etc.  and had referred to complaints  against  two officers, one a Judicial Magistrate and the other a  Revenue Officer  and  had  sent those  complaints  to  the  District Magistrate,  Commissioner  and the Chief  Secretary  in  the State  and secondly because very little publicity  had  been given to the statement.     In  Re:  Hira  Lal  Dixit  &  two  Ors.(2)   the   above principles were ,applied and reaffirmed.  In that case words which had been used in a poster which was published had  the necessary implication that the judges who decided in  favour of  the  Government  were rewarded by  the  Government  with appointments  to  this Court.  Although this  case was   not one  of scandalizing of the court but the question that  was posed  was  whether  the  offending  passage  was  of   such character and import or made in such circum- (1) [1953] S.C.R. 1169. (2) [1955] 1 S.C.R. 677. 791 stances  as  would tend to hinder or obstruct  or  interfere with  the  due course of administration of justice  by  this Court  and  it  was  answered in  the  affirmative  and  the contemnor was held guilty of Contempt of Court.  In State of Madhya  Pradesh  v. Revashankar(1) an application  was  made under  s. 528 of the Code of Criminal Procedure  in  certain criminal proceedings containing serious aspersions against a Magistrate, Mr. N.K. Acharya. Reliance was once again placed on  Brahm Prakash Sharma’s(2) case and the  principles  laid therein.   It  was held that the aspersions which  had  been made  amounted  to something more than  a  mere  intentional personal  insult  to the Magistrate;  they  scandalised  the court itself and impaired the administration of justice  and that proceedings under the contempt of court could ’be taken against the contemnor.     There can be no manner of doubt that in this country the principles which should govern cases of the present kind are now  fully settled by the previous decisions of this  Court. we  may re; state the result of the discussion of the  above cases  on  this  head  of contempt  which  is  by  no  means exhaustive.                   (1  )  It will not be right  to  say  that

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             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 administration of law               and justice.                   (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  his court. It is only in the  latter  case               that it wilt be  punishable  as Contempt.               (1) [1959] S.C.R. 1367.               (2) [1953] S.C.R. 1169.               792                   (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 Mukherjea, J.  (as               he then was) (Brahma Prakash Sharma’s case)(1)               the  publication  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               embarrassment in the mind of the judge himself               in the discharge of his judicial duties.     As  regards  the third contention no  attempt  was  made before the High Court to substantiate that the facts  stated in the article were true or were rounded on correct data. It may  be that truthfulness or factual correctness is  a  good defence  in an action for libel, but in the law of  contempt there  are hardly any English or Indian cases in which  such defence has been recognized. It is true that in the case  of Bathina Ramakrishna Reddy(2) there was some discussion about the bona fides of the person responsible for the publication but  that was apparently done to dispose of  the  contention which  had been raised on the point. It is quite clear  that the  submission made was considered on the  assumption  that good  faith can be held to be a defence in a proceeding  for contempt. The words "even if good faith can be held to be  a defence at all in a proceeding for contempt" show that  this Court did not lay down affirmatively that good faith can  be set  up as a defence in contempt proceedings.  At any  rate, this point is merely of academic interest because no attempt was made before the High Court to establish the truthfulness of  the facts stated in the article. On the other  hand,  it was  established that some of the material allegations  were

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altogether wrong and incorrect.     Lastly the submission that the statements contained   in the article made out only a charge of bias against the judge and  this cannot constitute contempt has to be stated to  be rejected. It is a new point and was never raised before  the High Court.  Moreover the suggestion that the charge in  the article was of legal bias which meant that Justice  Tarkunde had some sort of pecuniary interest in Khare-Tarkunde  which had the transactions with the bank of which Thackersey was a Director  is  wholly  baseless. Counsel had  to  agree  that Justice  Tarkunde  was neither a shareholder nor  was  there anything  to  show that he had any other interest  m  Khare- Tarkunde.  The mere fact that his brother happens (1) [1953] S.C.R. 1169. (2) [1952] S.C.R. 425., 793 to have a holding in it cannot per se establish that Justice Tarkunde  would  also  have  some  financial  or   pecuniary interest therein.  It is not possible to accept nor has such extreme position been taken by the counsel for appellant no. 2 that there is any bar to a brother or ’a near relation  of a  judge  from  carrying  on  any  business,  profession  or avocation.   The  entire argument on this  point  is  wholly without substance.     The appellant No. 2 showed no contrition in the   matter of  publication  of the impugned article.   lie  never  even tendered  an unqualified apology. The High Court,  in  these circumstances,  was  fully justified in  punishing  him  for contempt   of  court  and  in awarding  the sentence   which was  imposed.   In the impugned article there  was  a  clear imputation  of  impropriety, lack of integrity  and  oblique motives  to Justice Tarkunde in the matter of  deciding  the Thackersey-Blitz  suit  which,  on  the  principles  already stated, undoubtedly constituted contempt of court. The appeal fails and is hereby dismissed. V.P.S.                                   Appeal dismissed. 794