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Section 2(c)(iii) in the Contempt of Courts Act, 1971
Article 19(1)(a) in The Constitution Of India 1949
Article 215 in The Constitution Of India 1949
Section 2 in the Contempt of Courts Act, 1971
Jyotirmay Guha Neogi vs State Of West Bengal And Ors. on 25 July, 2006

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Calcutta High Court
In Re: Daily 'Aajkaal' vs Unknown on 7 July, 1989
Equivalent citations: 1990 CriLJ 228
Author: U C Banerjee
Bench: S C Sen, U C Banerjee

JUDGMENT Umesh Chandra Banerjee, J.

1. Though judicial hypersensitiveness is not warranted but angelic silence on the part of a Judge is also not expected to sub-serve the ends of justice as regards the maintenance of majesty of law.

2. In India Law of Contempt has been codified in order to allow the Law Courts to uphold the dignity of Courts. The Contempt of Courts Act has been engrafted in the Statute Book, inter alia, for the purpose of bringing in a feeling of confidence in the people in general for due and proper administration of justice in the country. It is however, undoubtedly a powerful weapon in the hands of the Courts and as such it must be exercised with proper care and caution and only in cases of larger interest for the due administration of justice.

3. In this matter a suo motu Rule of Contempt was issued by this Court during the course of hearing of an application for stay by reason of publication of certain articles in a local Bengali daily newspaper "AAJKAAL".

4. At this juncture, however, certain factual aspect ought to be noted.

5. As against the order of the learned trial Judge quashing a criminal proceedings pending against a Police Officer belonging to the Calcutta Police, the complainant preferred an appeal before this Court. There is no manner of doubt that considerable amount of public interest has been aroused in the matter and the Press also played a significant role. On the factual score it appears that the petitioner-complainant lodged a complaint before the Magistrate by reason of alleged inhuman torture on the part of the Police Officer on the complainant whilst in police custody as a MISA detenu. The learned trial Judge of the Court below on a writ petition filed by the accused, however, upon consideration of certain factors released the accused and quashed the proceeding. Immediately after the judgment, however, there was substantial amount of public debate on the score, some criticising the judgment, some, however, in favour of the judgment. An appeal from the order of the Court below was preferred and during the course of hearing of the stay petition before this Court, a publication containing articles was produced before this Court. This Court took very strong exception, since freedom of Press and freedom of speech though being the two gigantic pillars of our democratic setup, but law of the land would not permit a simultaneous trial by the Newspaper. The articles contained in the daily issue at that juncture was thought of though prima facie, to be contumacious in nature and amounted to scandalisation of the Court. By reason of the above however, a suo motu Rule of Contempt was issued by this Bench against the Editor of the local Bengaly Daily "AAJKAAL" together with the contributors of the articles.

6. In order to appreciate the contentions raised, the rule issued by this Court ought to be noted here. The Rule reads as follows : --

"Whereas it has been brought to the notice of this Court about the publication made by local daily issue of "AAJKAAL" of the seventeenth day of August one thousand nine hundred and eighty eight. City Edition that apart from the report of the case in Appeal No. 652 of 1988, Matter No. 999 of 1988 (Smt. Archana Guha v. Ranjit Guha Neogi alias Runu Guha Neogi) which appears at page 7 of the said issue there is a full page duscussion of the merits of the said case at page 6 of the said articles of which three articles written by Sri Debesh Roy, residing at BE 179, Salt Lake. Calcutta-64, Goutam Chattopadhyay residing at 2, Palm Place, Calcutta-17 and Subhasis Moitra whose place of work is at 7, Jawaharlal Nehru Road, Calcutta at the office of "Pratikshar" respectively have been published in the said issue of local Daily "AAJKAAL". City Edition dealing with the issue now being considered in this Court and whereas it further appearing prima facie that such publication as aforesaid in the said issue interferes with the administration of justice and lowers the dignity of this Court and as such this Court is of the view that such acts of abovenamed Debesh Roy for writing article under the heading "(Let the High Court save itself from ignominy) of abovenamed Goutam Chattopadhyay for writing articles under the heading "(Archana is lashing out at her conscience) and of abovenamed Subhasis Moitra recording interview with Shri Arun Prakash Chatterjee, Senior Advocate of this Court and Counsel appearing for the appellant Archana Guha abovenamed under the heading"

"(The merit of the case is extremely good) and also Shri Pratap Kumar Roy, the Chief Editor and Shri Ashoke Dasgupta the Editor of the said local daily "AAJKAAL" for publishing the articles hereinbefore mentioned and also the article"

" (History of the case) in the said issue of the local daily "AAJKAAL" dated the seventeenth day of August one thousand nine hundred and eighty eight amount to committing contempt of this Court.

It is ordered that a suo motu Contempt Rule do issue calling upon the abovenamed Debesh Roy, Goutam Chattopadhyay and Subhasis Moitra to show cause why they and each of them should not be committed to prison or otherwise penalised or suitably dealt with for having committed contempt of this Court by writing articles...".

7. On a perusal of the Rule as above, it therefore, appears that the same has been issued on two counts :, viz. (a) interfenence with the administration of justice : and (b) lowering the dignity of this Court. Incidentally the above-noted two counts fall within the definition of Criminal Contempt in terms of Section 2(c)(iii) of the Contempt of Courts Act, 1971. The issue, therefore, before this Court is as to whether these articles in fact scandalised or lowered the authority of Court or there is any obstruction to the administration of justice by this Court.

8. All the parties against whom the Rule of Contempt was issued contended in the same vein that the articles appearing in the Newspaper under the heading as above cannot be termed to be an article amounting to scandalisation of the Court or lowering the dignity of the Court or in any event can be termed to be interferring with the administration of jutice. Numerous decisions were cited from the Bar to show in effect the freedom of speech of the Press and the right to criticise a judgment : (1980) 3 All ER 161; (1968) 2 All ER 319; (1973) 3 All ER 54; AIR 1978 SC 727; (1936) AC 322; AIR 1988 SC 1208; (1900) 2 QB 36; AIR 1965 SC 745; AIR 1971 SC 221; (1971 Cri LJ 268); AIR 1978 SC 921 : (1978 Cri LJ 917); AIR 1989 SC 190; 54 Cal WN 883 (PC); AIR 1958 Mad 558 : (1958 CriLJ 1421); (1914) ILR 41 Cal 173 : 14 Cri LJ 321 (SB); (1960) 2 All ER 841; (1973) 1 All ER 815; 8 L.Ed. (U.S.) 569; (1941) 86 L.Ed. (U.S.) 192; (1945) 90 Law Ed. (U.S.) 1295.

Relying thereon, however, it was contended that the Court must come to a definite finding, in order to bring home the charge of contempt within the meaning of Section 2(c)(iii), that the Court's decision was affected by reason of the publication. Whilst on this aspect of the matter, the speech of Viscount Dilhorne in the off-quoted decision of Attorney General, v. British Broadcasting Corporation reported in (1980) 3 All ER 161 seems to be apposite. Viscount Dilhorne observed :

"It is sometimes asserted that no Judge will be influenced in his judgment by anything said by the media and consequently that need to prevent the publication of a matter prejudicial to the hearing of a case only exists where the decision rests with layman. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the Court and he will not knowingly let himself be influenced in any way by the media, nor in my view, will any layman experience in the discharge of judicial duties. Nevertheless it should be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be sub-consciously affected by it. As Denning M.R. said, the stream of justice must be kept clean and pure. It is the law and it remains a law unless it is changed by the Parliament that the publication of matter likely to prejudice the hearing of a case before a Court of Law will constitute a contempt of Court punishable by fine or imprisonment or both".

9. At this juncture, however, the speech of Lord Salmond dought also to be noted. In this speech Lord Salmond observed :

"Practically every civil action is, however, tried by Judge alone. Some of these cases are of great public matters. Contempt of Court in relation of such cases was carefully considered by the Phillmore Committee and its report was published about six years ago. Nothing has happened since although the report contains excellent recommendation and suggestion for much needed reforms. I am and have always been satisfied that no Judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a Judge. In my view, this branch of our law is in urgent need of careful consideration by Parliament".

10. While it is true that a Judge should be able to discharge his duties sitting on a high pedestal irrespective of public sayings and Press reports. The observation of Viscount Dilhorne as regards the Judge and his subconscious mind cannot, in my view, be said to represent the true character of a Judge specially in the modern day concept of administration of justice. One ought not ignore the change of social structure by reason of the socio-economic changes in the society. The old Draconian concept of law has changed and law in order to meet the present day requirement of the society must also keep pace with it. Otherwise the law will lag behind and the resultant effect of which would be its uselessness. In the similar vein the concept of administration of justice also has to change in order to keep pace with the time. Can it be said that the Press and the other media enjoy the same right and privileges in the present day as compared to 19th century or early 20th century? The answer would invariably be in the negative. Recognition of such a right is much more accepted in the present day rather than in the olden days. This is throughout the Globe including this country. I am of the view, however, considering the present day trend Lord Salmond's observation is extremely pertinent. The post and the office of a Judge specially of the Superior Court has a sanctity of its own. No outside influsence can or does have any effect on a Judge in the discharge of his juficial function, far apart a Newspaper publication. Freedom of speech is one of the basis tenets of our Constitution and that includes the freedom of the Press, But that freedom, however, cannot be said to be unlimited or unrestricted. Irresponsible journalism which is ascribed to be yellow journalism in modern phraseology, cannot be said to be protected neither the framers of our Constitution did envisage such a state.

11. Article 215 of our Constitution lays down that every High Court shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself. This right of inflicting punishment for contempt of Court was conferred upon the High Court for the purpose of ensuring the rule of law and orderly administration of justice. The purpose of the contempt jurisdiction is to uphold the majesty and dignity of the Courts of Law. The image of such a majesty in the minds of the people cannot be allowed to be distorted. The respect and the authority commanded by the Courts of law is the greatest guarantee for protection of Constitutional rights : Between the three great organs of the State, the Legislature, the Executive and the Judiciary, the duty of the judiciary is to uphold the Constitutional rights of ordinary citizens and afford protection to citizens from executive tyranny. The judicial process is the only method of enforcing the rights of the citizens under the Constitution. The entire democratic fabric of the society will break down if the respect for the judiciary is undermined.

12. The right of the Press to criticise the judiciary must be exercised in such a manner that people's faith in the juficiary is not shaken. The Press has a right to critise a judgment but in criticising the judgment, the Press must summarise the judgment fairly and accurately and is also entitled to criticise the conclusion reached in the judgment in temperate language.

13. But if a judgment is condemned unread or by distorting the facts found in that judgment or twisting the law enunciated in the judgment then the Press has not rendered any service to the people, on the contrary a great disservice to the society. The judiciary will be judged by the people by what the judiciary does, but if the Press gives distorted version of Court's proceedings and invites people to judge the judiciary on the basis of such distorted versions of judicial proceedings, in such a case the Press cannot take shelter under Article 19(1)(a) of the Constitution which guarantees freedom of speech and expression. In exercise of the right of freedom of speech and expression, nobody can be allowed to interfere with the due course of justice or to lower prestige or the authority of the Court.

14. Cases may happen in which the Judge may be mistaken, but the law has provided a remedy for correction of such mistakes. The party injured is entitled to pursue every method by which such mistakes may be corrected. The Press if it thinks that a judgment is mistaken has a right to criticise the judgment and point out the supposed mistakes but in a temperate language; But what the Press cannot do is to caluminate the proceedings of a Court of Law which has a result of weakening the administration of justice and in consequence to undermine the very foundation of the Constitution itself; because nothing is more important to the proper functioning of the Constitution than a strong and effective judiciary which is respected and obeyed by the people and also the administration. In the case of Prospective Publication (P) Ltd. v. State of Maharashtra, reported in 1970(2) SC Journals p. 35 it was observed by the Supreme Court that 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 embarassment in the mind of the Judge himself in the discharge of his judicial duties.

15. Undoubtedly the matter in issue which has been dealt with by the learned trial Judge has aroused tremendous amount of public interest and the Press have also gone ahead with the programme. But that by itself, however, does not justify any irresponsible journalism. Press comments must be fair and reasonable. Intemperate user of language cannot also be accepted or be tolerated by a Court of Law, neither a publication which can be termed to be embarassing can be permitted for due administration of justice.

16. Let us, therefore, now analyse as to whether there was in fact any irresponsible or embarassing journalism so far as judiciary in this State is concerned? But before so doing, Lord Atkin's sayings in Ambard v. Attorney-General of Trinidad and Tobago (1936 AC 322 at 335) that justice is not of cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary man. In this context the observations of Justice Mukherji in the case of P.N. Dooda v. P. Shibashankar reported in AIR 1988 SC 1208 : (1988 Cri LJ 1745) ought also to be noted :

"Administration of justice and judges are open to public criticism and public scrutiny, Judges have their accountability to the society and their accountability must be judged by their conscience and the oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. These, the judges must do, in the light given to them to determine what is right and again as has been said in the famous speech of Abraham Lincoln in 1865 "with malice towards none, with charity for all, we must try to do the " right in the light given to us to determine that right". Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of judges and brings administration of justice into ridicule must be stopped. The Contempt of Court proceedings arise out of that attempt. Judges can be criticised, the motives of the judges need not be attributed, it brings the administration of justice into deep disrepute. Faith in the administration of justice is one of the pillar through which democratic institution functions and sustains. In the free market place of ideas criticism about judicial system or judges should be welcome so long as such criticism does not impair or hamper the administration of justice. This is how the Court should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of a litigant or a lawyer".

17. In the instant case article by one Debesh Roy has a heading as noted above. "Let the High Court save itself from ignominy". The heading itself does not seem to be in a temperate language coming out from a responsible journalist, neither the same can be termed to be a fair criticism of a judgment. The last paragraph of that particular article with the heading as above ought also to be noted. In sinple English last paragraph reads that "Let the Indian judicial system and the Calcutta High Court prove that a person like Archana Guha has the right to seek justice as against the inhuman torture effected into Smt. Archana Guha by Shri Ramu Guha Neogi, an officer of the Calcutta Police and in the event, if fails to prove the same, everybody would loose faith on the administration of justice and nobody would like to have decisions or judgments of this Court even by spending 2 paise". The other article under the heading "Archana is lashing out at her conscience" by one Goutam Chattopadhyay does not also seem to be a fair comment or a responsible journalism. In the article as being presently dealt with Shri Goutam Chattopadhyay. in particular, last two paragraphs therein, stated, "wouldn't Archana Guha, the undaunted soldier for protection of human rights get proper justice from this Court, which has seen the historic judgment of Justice A. M. Sen, as against the worst police attrocities in the seventees". The last few lines of the article also contains certain statements which, in my view, cannot be termed to be responsible journalism. It states that "the people of West Bengal should rise up to the. occasion and demand that the complaint case filed by Archana Guha should start immediately and must be decided in the year 1988. as otherwise, every one of us will remain a guilty party to the posterity".

18. The judgment in the case of Ranjit Guha Neogi v. State of West Bengal reported in (1988) 2 Cal HN 313 is under appeal. Whether the judgment is right or wrong will be decided by the Court of Appeal. We cannot express any opinion about the correctness of the judgment at this stage but what is important to note is that the criminal proceedings were quashed in that case on a number of grounds. Special notice in the judgment was taken of the following facts :

(i) That Archana Guha had not made any complaint of torture when she was produced before the Advisory Board or the Magistrate during her detention under Maintenance of Internal Securities Act (MISA);

(ii) The complaint was actually made more than three years after her release from detention;

(iii) It was not clear whether the weakness of her lower limbs was caused by any alleged torture in police custody or the after-effect of an operation that she had to undergo.

19. There is no mention in the newspaper articles about any of these factors. A very distorted picture of the judgment has been given. The readers have been informed that merely because of the long delay the criminal proceedings were quashed.

20. The judgment was criticised and condemned either unread or if the judgment was read a very distorted version was given in the articles. The articles were either thoroughly irresponsible or mischievous or both. None of the articles can be defended as fair comment made in temperate language about a court case. In fact the distorted version of the judgment given and the language employed in the articles may have the effect of shaking the confidence of the people in the judiciary and thereby lower the dignity and majesty of the law.

21. In my view, it is undoubtedly a comment which cannot be termed to be a fair criticism of the judgment. Law Courts are here not to gag the Press but to allow a free hand, as otherwise there would riot be proper blossoming up of the judiciary in the State, as also in the country. Free Press does not mean and imply an authority to make aspertions on the judiciary. It must use proper restraint so as to be able to be ascribed to be a fair comment. Four articles have been printed on one particular page and the heading of that page reads as "Archana with the exception of getting justice for 11 years". This must be an editorial heading and the first article by Debesh Roy was admittedly at the instance of the Editor-in-Chief of the Newspaper. Can it be said to be responsible journalism? In my view, the answer is in the negative.

22. Corrective power of the Press has a universal application. Society in order to prosper will have to have a free Press, but as noted above, free Press does not imply without limitations and without restraint. The Press has a responsibility towards the society at large and that responsibility can only be discharged in the event the Press comes out with a fair and proper comment and attitude.

23. The other aspect of the matter, however, has a bearing in the matter in issue and ought to be dealt with at this juncture. It is now well-settled principle of law -- both in this country as well as in the United Kingdom and United States of America that there should be an imminent danger and interference with the administration of justice. In my view, however, reading the articles in its entirety and considering the submissions as contained in the affidavits that the intent was not to bring the judiciary into disrepute, on the contrary, an expectation has been expressed of having justice from the High Court itself. Reading in between the lines of some portions of the articles one may, however, tend to conclude that there is likelihood of articles interfering with the pending proceeding, but by reason of the statements as above and the submissions from the Bar that there was in fact no improper motive and considering the articles in its entirety on the facts of it, there exists some amount of doubt as regards the culpability of the Editor or the contributories of the articles by reason wherefor the benefit should go in favour of the person against whom the Rule of contempt was issued. As noted above, the power to punish for contempt ought to be exercised with care and caution and it is only in clear cases, this power should be invoked, but not otherwise.

24. In that view of the matter, I hold the publication not to be within the ambit of Section 2(e)(iii) of the Contempt of Courts Act, though, however, the language used could have been better, polite and sober rather than the one which has been used by the writers of the article having been encouraged by the Editor of the Daily. The conclusion of mine is also reached by reason of the fact that there was in fact a wider debate on the issue going on and publications in a Bengali Weekly also exhibit such a sider public debate.

25. In that view of the matter, the suo motu Rule of Contempt issued is discharged, though with a word of caution that unnecessary arrogance of the Press cannot be appreciated by the Law Courts and journalism must be fair and reasonable.

Suhas Chandra Sen, J.

26. I agree.