R.S. Bharathi vs The State of Tamil Nadu

Sanjay Kishan Kaul, C.J.—We have perused the affidavit of the 12th respondent, who has expressed her deep regret and apology for the offensive and derogatory remarks made qua judiciary, more specifically the Judge concerned, Mr.John Michael D''Cunha, who, we are informed, is posted as Registrar-Vigilance of the Karnataka High Court at present. She has also undertaken to give publicity to her regret and unconditional apology and to issue press statements expressing her regrets.

In view of this stand of the 12th respondent, we are inclined to accept the apology and regret.

The 12th respondent to issue a press release and publish her regret and unconditional apology in the newspapers, where the item appeared reporting her earlier conduct.

A copy of the affidavit filed in Court along with our order be sent to Mr.John Michael D''Cunha, the Registrar-Vigilance of the Karnataka High Court.

As far as the resolution passed by the Samathur Town Panchayat is concerned, the affidavit has been filed by the Chair Person stating that in the heat of the moment, the resolution was passed, but having realised the folly, an emergency meeting was convened on 07.10.2014 and the earlier resolution was cancelled. She has tendered unconditional apology on her behalf and other members.

Learned counsel for the petitioner points out that the cancellation can strictly speaking be carried out by the State Government under Section 36 of the District Municipalities Act, 1920. The State Government should also take necessary steps within a week. We make it clear that the resolution passed on 30.09.2014 should be obliterated from the record.

On parity, we direct that the apology be published and press release be issued in the same way, as we have directed for the 12th respondent and a copy of this affidavit be also forwarded to Mr.John Michael D''Cunha, now the Registrar-Vigilance of the Karnataka High Court.

We hope what has happened will not arise in the future and the deponents are truly apologetic for what they have done from their heart. It is this hope which is restraining us from taking any further action and in this behalf we may refer to the judgment cited by the learned counsel for the petitioner of In Re: S. Mulgaokar, , on the issue of jurisdiction of contempt in the context of criticism of a Judge. The six guiding principles have been laid out from para 26 to 33 as under and the purpose of repetition of the same below is only to remind all of us all of these observations of Late Mr. Justice V.R.Krishna Iyer.

What then are the complex of considerations dissuasive of punitive action ? To be exhaustive is a baffling project; to be pontifical is to be impractical; to be flexible is to be realistic. What, then, are these broad guidelines-not a complete inventory, but precedentially validated judicial norms?

The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process. The court is willing to ignore, by a majestic liberalism, trifling and venial offenses-the dogs may bark, the caravan will pass. The court will not be prompted to act as a result of an easy irritability. Much rather, it shall take notice look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.

The second principle must be to harmonise the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding functionary, the judge. A happy balance has to be struck, the benefit of the doubt being given generously against the judge, slurring over marginal deviations but severely proving the supremacy of the law over pugnacious, vicious, unrepentant and malignant contemners, be they the powerful press, gang-up of vested interests, veteran columnists or Olympian establishmentarians. Not because the judge, the human symbol of a high value, is personally armoured by a regal privilege but because ''be you-the condemner ever so high, the law-the People''s expression of Justice-is above you. Curial courage overpowers arrogant might even as judicial benignity forgives errant or exaggerated critics. Indeed, to criticise the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. For, it blessed him that gives and him that takes. Where freedom of expression, fairly exercised, subserves public interest in reasonable measure, public justice cannot gag it or manacle it, constitutionally speaking. A free people are the ultimate guarantors of fearless justice. Such is the cornerstone of our Constitution; such is the touchstone of our Contempt Power, oriented on the confluence of free speech and fair justice which is the scriptural essence of our Fundamental Law. Speaking of the social philosophy and philosophy of law in an integrated manner as applicable to contempt of court, there is no conceptual polarity but a delicate balance, and judicial ''sapience'' draws the line. As it happens, our Constitution makers foresaw the need for balancing all these competing interests. Section 2(1)(c) of the Contempt of Courts Act, 1971 provides :

Criminal contempt" means the publication (whether by words, spoken or 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 tends to scandalise, or lowers or tends to lower the authority of any court.

This is an extremely wide definition. But, it cannot be read apart from the conspectus of the constitutional provisions within which the Founding Fathers of the Constitution intended all past and future statutes to have meaning. All laws relating to contempt of court had, according to the provisions of Article 19(2), to be "reasonable restrictions" on the exercise of the right of free speech. The courts were given the power-and, indeed, the responsibility-to harmonize conflicting aims, interests and values. This is in sharp contrast to the Phillimore Committee Report on Contempt of Court in the United Kingdom (1974) bund. 5794 prs. 143-5, pp. 61-2) which did not recommend the defence of public interest in contempt cases.

The third principle is to avoid confusion between personal protection of a libeled judge and prevention of obstruction of public justice and the community''s confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound.

Because the law of contempt exists to protect public confidence in the administration of justice, the offence will not be committed by attacks upon the personal reputation of individual judges as such. As Professor Goodhart has put it :

Scandalising the court means any hostile criticism of the " judge as judge; any personal attack upon him, unconnected with the office he holds, is dealt with under the ordinary rules of slander and libel. (See ''Newspapers and Contempt of Court'' (1935) 48, Harv. L. Rule 885, 898.) Similarly, Griffith, C. J. has said in the Australian case of Nicholls (1911) 12 C.L.R. 280, 285 that :

In one sense, no doubt, every defamatory publication concerning a judge may be said to bring him into contempt as that term is used in the law of libel, but it does not follow that everything said of a judge calculated to bring him into contempt in that sense amounts to contempt of Court.

Thus in In the matter of a Special Reference from the Bahama Island (1893) A.C. 138 the Privy Council advised that a contempt had not been committed through a publication in the Nassau Guardian concerning the resident Chief Justice, who had himself previously criticised local sanitary conditions. Though couched in highly sarcastic terms the publication did not refer to the Chief Justice in his official, as opposed to personal, capacity. Thus while it might have been a libel it was not a contempt.

The fourth functional canon which channels discretionary exercise of the contempt power is that the Fourth Estate which is an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest Court.

The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation: by judicial rectitude.

The sixth consideration is that, after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike, a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.

Writ Petition, accordingly, stands closed. No costs.