Advocate General vs K.A. Bahuleyan and Others

K.T. Thomas, Actg. C.J.

Advocate General of Kerala has moved this petition to take action against four persons for contempt of this Court. This action is based on a speech made by the first Respondent-Bahuleyan on 28th December 1995 while addressing a well attended public meeting at Gandhi Park, Thiruvananthapuram. First Respondent is alleged to have hurled scurrilous epithets against a sitting Judge of this Court regarding a matter connected with his judicial function. The other three Respondents are persons connected with a newspaper by name "Jenmabhoomi" as the offending speech of the first Respondent was published in one of the issues of Jenmabhoomi newspaper.

The stand adopted by the first Respondent, in general, is that though he addressed the said meeting in which he had occasion to refer to some of the orders passed by the learned Judge concerned he did not make any offensive remarks against the Judge and that he had always held the institution of judiciary as of prime importance in a democratic set up.

The stand uniformly adopted by the remaining Respondents is that every word of the speech attributed to the first Respondent published in Jenmabhoomi newspaper was uttered by the first Respondent and that the publication was made with the good intention of bringing those utterances to the notice of the High Court. The publication was never intended to show any disrespect to the Court, nor even any approval of the speech made by the first Respondent.

A resume of the events which provided the background for this action is the following: "Sivagiri Ashram" at Varkala is a famous shrine in Kerala, as the same was founded by Sree Narayana Guru. Its administration is to be carried on in accordance with a scheme made for that purpose. But a feud has developed among the activists of the shrine which led to a series of litigations between two factions. The last of the litigation related to the validity of an election to the Managing Committee of the shrine. A Civil Revision Petition filed in this Court was heard and disposed of by a learned Judge of this Court. Learned Judge directed that administration of Sivagiri shrine shall be handed over to those who won the election. The defeated faction opposed the direction and offered stiff resistance to its enforcement. However, with the help of police the direction of this Court was enforced. Those from whom the administration was wrested pursuant to the said direction formed an organisation called "Sivagiri Action Council". First Respondent is said to be its Chairman. The meeting held at Gandhi Park, Thiruvananthapuram of on 28th December 1995 was one of the programmes of the said action council.

The offending portion of what first Respondent has spoken at the meeting mentioned above is the subject matter of this proceeding. "Jenmabhoomi" newspaper published the speech in its issue dated 29th December 1995. The following is the offending portion of the said speech as published in the newspaper:

What happened at Sivagiri was an act of grave cheating. But what Justice (name of the Judge is mentioned) of Kerala High Court has done was a graver act of cheating. Persons belonging to different religions and castes are being appointed as Judges, but they do not become representatives of their castes. They blind their eyes with black clothes while sitting on the Judge''s seat. But this Judge has thrown off the black clothes and exhibited the face of his upper caste. When Anr. Judge who was hearing Sivagiri case happened to be on leave this Judge sat on that seat, snatched out the file of Sivagiri case from among the records and delivered the judgment. This Judge has earlier violated the Constitution. The man who violated the Constitution is a criminal. This Judge has delivered a partisan judgment.

He then proceeded to challenge the learned Judge to take action against him for contempt of Court for which he used an uncivilised and derisive expression.

Shri K.B. Suresh, learned Counsel for the first Respondent, has no contention that if first Respondent had hurled the above epithets in his speech there is any escape for him from an action for criminial contempt. But learned Counsel contented that, as a matter of fact, first Respondent has not used those offending words at all. The burden is on the mover of this action to prove beyond reasonable doubt that first Respondent said so in his speech, contended the counsel. Learned Advocate General accepted the above proposition and submitted that the evidence on record is sufficient to prove that every word of what the newspaper published in Ext. P-1 had sprouted from the mouth of first Respondent and aircast through the loud speakers fixed at the meeting venue.

While evaluating the evidence we must bear in mind that first Respondent has admitted that he had addressed the meeting in which he made a reference to the learned Judge. In the counter affidavit, first Respondent has highlighted one of the interim orders passed by the learned Judge in Anr. case and criticised the learned Judge for adopting such an attitude towards "backward sections in the society." First Respondent further proceeded to castigate the learned Judge of this Court in his counter affidavit on the premise that this learned Judge has heard arguments in the case which was earlier heard in part by Anr. Judge. According to the first Respondent, "such an usurpation is never postulated in the realm of law and justice". So it is clear that first Respondent entertained insatiable prejudice against the learned single Judge who passed judgment in the said Civil Revision Petition.

P.W. 1 is a Government servant. (Grade-I Reporter attached to the Special Branch C.I.D.) He has deposed that he attended the meeting addressed by first Respondent as he was instructed by his superior to do so and that he took down the speech in shorthand. Ext. C-2 is the shorthand note book. Ext. C-2 (a) series contain the sheets on which P.W. 1 had taken down the speech of the first Respondent in shorthand. Ext. C-1 is the transcription of that speech. There is no dispute that Ext. C-1 is the correct transcription from Ext. C-2 (a). There is also no dispute that what is contained in Ext. C-1 is substantially the same as the report published in Ext. P-1 (Janmabhoomi newspaper).

We have absolutely no reason to reject the evidence of P.W. 1 as he has no sides in this matter. He was discharging his official duty when he took down the speech in shorthand. There is no case for the first Respondent that Ext. C-1 (a) series have been concocted by P.W. 1. Evidence of P.W. 1 is enough to prove beyond doubt that first Respondent has made the speech in which he used the offending epithets against the learned Judge as reported in Ext. P-1 newspaper.

There is Anr. item of evidence i.e., the testimony of P.W. 2 (who is 4th Respondent in this case). It was P.W. 2 who reported the speech to Janmabhoomi newspaper for publication. He is the news editor of the newspaper. Of course, learned Counsel assailed his evidence as partisan on the ground that on his own admission he wanted to bring first Respondent to action. We do not think it necessary to consider the evidence of P.W. 2 in great detail because it is enough to rely on the testimony of P.W. 1.

We, therefore, conclude that the applicant has proved beyond all reasonable doubt that first Respondent has made the speech as reported in Ext. P-1 Janmabhoomi newspaper.

Learned Counsel for the first Respondent tried to defend him contending that public has a right to criticise Judges and judgments. He relied on some of the observations of the Supreme Court in P.N. Dua Vs. P. Shiv Shanker and Others, such as:

Administration of justice and Judges are open to public criticism and public scrutiny... In the free market place of ideas criticism about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice.

To bolster up the contention that no amount of criticism would impair or hamper the administration of justice, learned Counsel reminded us of the oft-quoted words of Lord Atkin that:

Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and even the outspoken comments of ordinary men, if they are made respectfully.

Of course, those words of Lord Atkin have now become almost a classic. But those words cannot be truncated from what the Law Lord had further cautioned. "The path of criticism is a public way; the wrongheaded 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." [Vide Andre Paul v. Attorney General AIR 1936 P.C. 141. Way back in 1971 the Supreme Court has formulated the principles which would govern the cases of criminal contempt in Perspective Publications (P) Ltd. and Another Vs. State of Maharashtra, . They are: (1) It will not be right to say that committals for contempt for scandlizing 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. (4) A distinction must be made between a mere libel or defamation of a Judge and what amounts to a contempt of the Court. (5) Alternatively the test will be whether the wrong is done to the Judge personally or it is done to the public. 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. [Regarding the said 5th test, learned Judges quoted the words of Mukherjea, J. (as he then was) in Brahma Prakash Sharma and Others Vs. The State of Uttar Pradesh,

We bear in mind that contempt jurisdiction is a special and unusual type of jurisdiction wherein the Prosecutor and the Judge are combined in one. "The cornerstone of the contempt law is the accommodation of two constitutional values-The right of free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel" [vide Shri Baradakanta Mishra Vs. The Registrar of Orissa High Court and Another, ] In this context it is apposite to extract the words of Chief Justice Chandrachud in M.R. Parashar and Others Vs. Dr. Farooq Abdullah and Others, .

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 powerfull 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 sword 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.

After considering the evidence in the light of the above legal principles, we come to the unhesitating conclusion that by uttering the offending words contained in Ext. P-1 first Respondent has scandalised as well as lowered the authority of this Court and thereby committed criminal contempt. We, therefore, convict him u/s 12 of the Contempt of Courts Act, 1971.

In determining the quantum of sentence to be imposed on the first Respondent, we bear in mind that the invectives used by him in his speech against a sitting Judge of this Court were so scurrilous and unpardonable that any light sentence passed on him would, apart from being disproportionate to the gravity of the act committed by him, be a wrong signal to those who are prowling for cheap publicity and momentary plaudits by calumniating Judges and judicial institutions that they can gain them at nominal cost. This is, of course, only one side of it. The other side is, the High Court, though a Court of record, should not be vindictive to the first Respondent even though he has scandalised the institution of judiciary by using highly denigrating words against a sitting Judge. We should not deny the justice due to him also.

We inform ourselves in this context of the words of O. Chinnappa Reddy, J. in Asharam M. Jain v. A.T. Gupta (1984) 4 S.C.C. 125.

There is never any risk of judicial hypersensitivity. The very nature of the judicial function makes judges sympathetic and responsive. Their very training blesses them with ''insensitivity'' as opposed to hypersensitivity. Judges are always seeking good reasons to explain wrong conduct. They know there are always two sides to a coin. They neither give nor take offence because they deal with persons and situations impersonally, though with understanding. Judges more than Ors. realise the foibles, the frustrations, undercurrents and the tensions of litigants and litigation. But, as elsewhere, lines have to be drawn. The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that Judges need be protected Judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected.

Considering both aspects and by adopting great judicial equanimity we come to the decision that in the circumstances a minimum sentence of simple imprisonment for three months shall be imposed on him. we, therefore, sentence him to simple imprisonment for three months. He is directed to be committed to Central Prison for undergoing the said sentence.

Now we will deal with the case of Respondents 2 to 4. Though they have published the speech made by the first Respondent, they have adopted a stand that the publication was intended only to bring this matter to the notice of the High Court and they had the least intention to cause any disrespect to the Judge or to the High Court. In fact, they have tendered unconditional apology for publishing the speech which they thought was necessary to prevent repetition of such type of speeches by any one particularly by the first Respondent.

In the broad circumstances of this case, we feel that Respondents 2 to 4 have not acted by any malice or disrespect to the Court. Hence we don''t dispute their stand that they published first Respondent''s speech with the intention of bringing it to the notice of this Court. we, therefore, accept the unconditional apology tendered by Respondents 2 to 4 and drop further action against them on this matter.