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the Contempt of Courts Act, 1971
Section 3 in the Contempt of Courts Act, 1971
Section 2 in the Contempt of Courts Act, 1971
The Indian Penal Code
Section 15 in the Contempt of Courts Act, 1971

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Kerala High Court
Advocate General vs Abraham George on 23 June, 1975
Equivalent citations: 1976 CriLJ 158
Author: P S Poti
Bench: P S Poti, G Vadakkel

JUDGMENT P. Subramonian Poti, J.

1. This is a petition moved under Section 15 of the Contempt of Courts Act, 1971. by the Advocate General pf the State charging the respondent with having committed contempt of this Court The respondent, one Abraham George, was the second defendant in O. S. 81 of 1959 of the Alleppy Sub Court. The suit came to this Court in appeal A. S. 176 of 1970. The appeal was heard by a Division Bench of this Court consisting of the Honourable Mr. Justice T. S. Krishnamurthy Iyer and Honourable Mr. Justice N. D. P, Nam-baodirrpad. Judgment was delivered on 10-11-1972 dismissing the appeal. On 20-11-1972 the respondent addressed the Chief Justice of the High Court of Kerala by a Petition incorporating allegations against the Judges who decided the appeal A. S. 1976/1970. These allegations are said to scandalise the High Court. The petition sent to the Chief Justice is filed along with the petition of the Advocate General, marked Ext. P-l. Reference is made particularly to the following averments in the petition and it is said that these tend to scandalise and lower the authority of the High Court.

[Matter in Malayalam OmittedEd.] The respondent complains therein that the fraudulent documents produced by the plaintiff were suppressed and the counsel for the respondent was not allowed opportunity to argue to bring out the truth of the case. He also alleges that the Court held a farce, making up its mind before hearing and decided the case without recognising the principle that before the Court the Priest and the respondent are equals. Thus, it Is said, the Court has conducted itself hi such a way as to sell its prestige. Reference is made in the petition of the Advocate General to several similar petitions having been sent by the respondent to the High Court when the Original Suit was pending in the Sub-Court, Alleppy. It is said that the res- pondent has committed criminal contempt falling within the scope of Section 2 (c) of the Contempt of Courts Act 1971 {hereinafter referred to as the Act).

2. Though the case came up on an earlier occasion before another Division Bench the matter was not disposed of and it was subsequently posted before this Bench. Thereafter the respondent filed an affidavit said to be by wav of defence. This was filed on 2-6-1975. The respondent has no case even now that such a petition was sent to the Chief Justice due to any error of judgment on his Dart. He has no regret in having so represented to the Chief Justice by a petition. He sticks to his stand that what was done by the Division Bench was objectionable and was motivated which stand he reiterated at the hearing before us. He swears in his counter-affidavit that "he had forwarded about 7 complaints of the same type as Ext. P-l to various personages in power and authority including and up to the President of India". In justification of the charge of partiality levelled against the Judges who heard the atnoeal in Exhibit P-l letter addressed by him to the Chief Justice, he narrates the events in Court on the day his appeal was heard According to him when his counsel started to state the facts of the case he was interrupted by Justice R. D. P. Nam-boodiripad who is said to have made a reference to the existence of a lease deed as an answer to the appellant's case and it is said that though his counsel began to explain Justice Namboodiripad was- not in, a mood or temperament to hear further. Respondent states that his counsel then resumed his seat in disgust and Justice Namboodiripad was then in "a haste to start with dictation and called for Stenographer and hurried with dictation." There is & further reference to his colleague in the Bench Justice T. S. Krishnamurthy Iyer sitting there in the Bench "with his eves closed" suggesting that Justice T. S. Krishnamoorthy Iyer did not play an independant part in the disposal of the appeal.

3. The Party appeared in person and argued his case. He reiterated hi stand that what was done by him was for the good of the judiciary, that he knew that his charges were very serious, that he values his dignity more than the dignity of the judiciary, that he continues to feel the same wav about the Judges of this Court who decided his appeal and that his action did not amount to contempt. Evidently with a view to support his stand that the decision of the learned Judges of this Court was not correctly rendered he produced a number of documents in this Original Petition.

4. The learned Advocate -General stated before us that- there is no necessity to go into any material to ascertain whether the decision of this Court in A. & 176 of 1970 i right or wrong. That is foreign to the scope- of a petition for contempt, for, it is well settled that if a potolication about the Court of the Judges would scandalise the Court and to for that reason objectionable it is not sufficient to say that the alleged condemner honestly believed in the truth of his statements It is also not permissible to prove that the judgment of this Court, which was adversely cruised, was wrongly rendered this Court said so in the decision in. Advocate General v. Jahn. 1965 Ker I.T 429 : (1965) 1 Cri LJ 176, The Supreme Court in Perspective Publication v. State of Maharashtra. observed that the truthfulness or factual correctness of the statements which tend to scandalise a Court cannot be urged by way of defence and that it has hardly been recognised as a defence in any English or Indian case. The Supreme Court in C. K. Daxthtary v. 0.P. Gupta dealing with this question, observed (at p. 1149 of AIR) - (at p. Ml of Cri LJ) of the report thus:

If a judgment is criticized as containing errors, and coupled with such criticism, dishonesty is alleged, the Court hearing the contempt petition would first have to act as an appellate Court and decide whether there are errors or not. This is not and cannot be His function of a Court trying a petition for contempt If evidence was to be allowed to -testify allegations amounting to contempt of Court it would tend to encourage disappointed litigantsand one party or the other to a case is always disappointedto avenge their defeat by abusing the Judge.

Therefore we are not concerned in this case with the defence, if airy, s to the truth of the allegations made.

5. The Contempt of Courts Act, 1971 is an. Act to define and limit the powers of Courts in punishing contempt of Courts. A ^Criminal Contempt' fee defined in Section 2 (c) of the Act thus Criminal contempt" means the publication (whether by words, spoken t written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which

(i) scandalises or tend to scandalise. or lowers or tends to lower the authority of any Court, or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or

(iii) interferes or tends to interfere with, ox obstructs or tends to the administration of justice in any other manner;

6. The case here is that the respondent hag been, by writing the letter Ext. P-l to the Chief Justice, guilty of publication or at any rate doing of an act which scandalises or tends to scandalise or lowers or tends to lower the authority of a Court,

7. The classic exposition of the permissible limits of criticism is to be found in the of quoted passage in the judgment of Lord Atkin in Ambard v. A. G. for Trinidad and Tobago, 1936 AC 322 (AIR 1936 PC 141). Lord Atkin said:

The oath of criticism is a public way a 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 are 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 outspoken, comments of ordinary men.

8. Though the concept as to what would amount to scurrilous abuse has undergone change over the years, the principle remains the same as noticed by Gordon Borrie and Nigel Lowe in their Treatise "Law of Contempt". At age 156 the learned authors say s The English authorities are all over forty years old, and it cannot readily be assumed that what was held to amount to "scurrilous abuse" in 1900 or 1930 would be held to amount to scurrilous abuse in the 1970s. Society is more tolerant today of strong language and the Law Officers may well prefer to ignore isolated abusive comment on the judiciary rather than give it greater prominence by a prosecution. However, the principle remains the same, namely that abuse of a Judge amounts to contempt if it reflects upon his capacity as a Judge. On the other hand, criticism of a Judge's conduct, so lone as no aspersions are cast on a Judge's personal character, do not amount to scurrilous abuse.

It is profitable to extract a Passage from the same Treatise wherein the authors deal with contempt of Courts in the context of allegations of partiality of a Judge:

Allegations of partiality are probably the most common way in which the Court has been held to be "scandalized". The Courts are particularly sensitive about such allegations and there seems to be a clear distinction between an allegation of partiality and an allegation of incompetence. This sensitivity Is attribut- able to the fact that the very basic function of a Judge is to make an impartial judgment. Indeed the law goes to some length to ensure that a Judge has no personal interest in the case, his decision being considered void and of no effect if bias is proved : nemo index in sua cause. Allegations of partiality are treated very seriously indeed because they tend to undermine confidence in the basic function of a Judge.

9. Now that the question whether any person has committed contempt has to be decided in the light of the provisions of the Contempt of Courts Act, 1971 it may not be necessary to go into the question as to what exactly would be contempt as understood in this country in the light of the decisions evolved by Courts over a period of years. But it may be profitable to refer, in brief, to some of the decisions of the Supreme Court to understand the scope and ambit of the term "scandalising the Court". In the decision in the Supreme Court enumerated the principles governing such cases on the basig of the decisions rendered by the Courts of this Country:

We may restate the result pf 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 committals for contempt scandalising the Court have become absolute.

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 man."

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 we 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 will be punishable as contempt.

5. Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow the language of Mukherjee, J. (as he then was) (Brahma Prakash Sharma's case. ), 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.

10. Even assuming that a judgment is vitiated by errors that can be no excuse for imputing dishonesty to the Judge. It cannot be said that a scurrilous attack on a Judge in respect of a judgment or past conduct can have no adverse effect on the due administration of justice Sikri. C. J. in said, in this context, thus:

This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the judiciary. If confidence in the judiciary goes, the due administration of justice definitely suffers.

11. Any social system founded on the rule of law must recognise the independence of the judiciary. The faith and confidence of the people in the dignity, honesty and independence of the Courts and judges of the country can be seriously imperilled by irresponsible behaviour in exercising the privilege of criticising the Courts. It is no doubt true that the people of this country are interested in the proper working of our judicial system as much as in the conduct of the executive and the legislature. Logically therefore, Courts cannot be immune from criticism. But such criticism must not only be honest and constructive but it is also expedient that the criticism is not motivated by malice. Judges have to discharge the onerous task of taking decisions in contentious matters. Quite often such decisions may not be relished by defeated parties and sometimes even by a section of the public when the issue involved has relevancy otherwise than merely as a settlement between the contending parties to the cause. But it would be well to remember that Judges are not administering justice in the abstract, in accordance with their own notions of right and wrong but according to the law of the country. Despite the marginal flexibility of law and the desirability of the role of the Judge as one interpreting and applying it with a positive approach there is bound to be limitations in such exercise in a system of jurisprudence which recognises the subservience of the judiciary to the Constitution and the laws of the country.

12. Healthy and honest criticism of Courts and their judgments is an inevitable privilege of the people in a democratic State. But quite often, when the criticism comes from quarters directly affected by the decision, there is likely to be absence of objectivity. The line between permissible criticism of a judgment and scandalous attack on the Judge who decided it is thin and when restraint, normally dictated by a sense of prudence, recedes to the background there is likely to be trespass. To impute unfairness, bias or dishonesty to the judge would be to directly undermine the confidence of the people in the Courts and the judicial system of this country. It is important to maintain the dignity and respect for the Courts, as without this, the public confidence in the administration of justice will be imperilled and the law itself will fall into disrepute. Naturally therefore there must be limitation to the privilege of criticism of decisions rendered by Courts. While judgments are open to criticism that must be done without casting aspersions on the Judges and the Courts and without adverse comments amounting to scandalising the Courts.

13. We see no justification for the conduct of the respondent. He has clearly imputed partiality, if not dishonesty, to the Judges who heard and decided. A. S. 176 of 1970. He refers to suppression of the fraudulent documents produced by the plaintiff, evidently suggesting that though the Court noticed that the plain-tiff documents were fraudulent, account was not taken of such evidence in the final assessment. Again the allegation that a farce (of heavy) was held without recognising the principle that any priest and the respondent were equals clearly imputes partiality or bias on the part of the learned Judges. These statements, we consider, do amount to scandalous attack of the Court. These have been made in a petition addressed to the Chief Justice. The Chief Justice can take no action on such a petition and he has no role to play in the matter of any such Representation. Under such circumstances the Supreme Court considered whether the person charged for contempt was guilty of such contempt. We are referring to the decision in Mulkh Rai v. State of Punjab . In that case proceedings under Section 3 of the Contempt of Courts Act, 1952 were initiated at the instance of the District Judge himself. Such proceedings arose out of an application made by the appellant to the Chief Justice of India. Copy was sent by him to the Chief Justice of Punjab and Haryana High Court. In the application allegations were made against the Additional District Judge and also against Mr. Justice Harbans Singh of the High Court. The appellant was found guilty of contempt by the High Court. The plea before the Supreme Court was that the application to the Chief Justice was at the most representation of a person against the Subordinate Court and the High Court to the highest Court of the land and if the appellant made a libellous remark against a Judge the appellant might be punished under the Indian Penal Code. This submission was considered to be unmeritorious. Learned Chief Justice said:

It will be most improper for the litigants to send applications to the Chief Justice of India concerning pending matters and making allegations against Judges. The dismissal of the appellant's application by the High Court was characterised by the appellant in offensive language casting aspersions on the judges and lowering the dignity and esteem of the judiciary.

14. We hold that in the circumstances stated the respondent is guilty of contempt of this Court. We convict him under Section 3 of the Contempt of Courts Act.

We would have been inclined to consider the act of the respondent as a result of an error of judgment on his part if he had not persisted in the stand taken by him. We do not see any justification to be considerate in the matter of sentence. We sentence the respondent to Simple Imprisonment for a period of 4 months.

We thank learned Counsel Sri K. S; Paripoornan for assisting the Court as amicus curiae.