IN THE MATTER OF: RUSTOM CAWASJEE COOPER versus UNION OF INDIA

IN THE MA TIER OF: RUSTOM CAW ASJEE COOPER

UNION OF INDIA

May 5, 1970

[M. HIDAYATU.!..LAH, CJ .. J. SHAH, K. s. HEGDE, AN. G1wvrn N. RAY AND I. D. DUA, JJ.]

Co11te111pt of Co11rt-Criricis111 of Court Judgn1ent-Lin1itaiiou 011.

At puhlic meeting held few days after the decision of this (~ourt on the constitution"\l validity of the Banking Companies (Acquisition of Transfer of Undertakings) Act 22 of 1969, K, Minister in the Central Government, wa"S reported by newspapers to have made certain critical remarks which, two petitioners be'fore the Court contended constituted serious contempt of this Court. The petitioners swore an affidavit in suppon of their, petition based on the newspapers reports. As the Court considered that some of the alleged observations, priina facil', exceeded the bounds of legitimate criticism, notice to show cause \Vas issued to K. Jn reply K filed an affidavit denying the main allegations and con-tending that he has been misreported. Jn support of his O'vvn affidavit. three other affidavits \\'ere filed by persons present at the public meeting. Although an application was niade for summoning the reporters present at the public meeting, the Court did not consider it necessary to prolong: the hearing of the case as on the material be'fore the Court there was nothing to contradict the affidavi1s \\'hich denied the accuracy of the newspaper reports. However. while closing the case, the Court observed :

While fair and temperate criticism ~f this Court or any other court even if strong, may not be actionable, attributing improper motives. or tend· Ing to bring judges or courts into hatred and contempt or obstructing directly or indirectly the functioning of Courts is serious contempt of '"'hich notice inust and will be taken. -Respect is expected not only from those to whom the judgment o'f the Court is acceptable but also from those to whom it is repugnant. Those 'vvho err in their criticism by in· dulging in vilification of the institution of Courts administration of ju~ticc 1:1nd the instruments through \~•hich the administration acts. should take heed *'or they wiil act at their own ,r.eril. [516 B]

ORIGINAL JURISDICTION : Wr:l Petition No. 300 of 1969.

M. C. Chag/a. N. A. Palkhivala, B. Datta, J. B. Dad(,chanji, O Mathur and Ravinder Narain, for the applicants.

H. R. Gokhale and S. B. Wad, for the respondent.

The Judgment of the Court was delivered by

Hidayatullah, C.J. This petition is an off-shoot of the deci-H sion of this Court on the constitutional validity of the Banking Companies (Acquisition of Transfer of Undertakings) Act, being Act 22 of 1969. By majority of ten Judges against one, this

Court declared the Act to be unconstitutional. The decision of the Court was given on February 10, 1970. ·

On February 13, 1970 meering was organised by the Blitz National Forum at Vithalbhai !>"ate! House at Delhi. It was pre->ided over by Mr. Mohan Kum_armanglam, an advocate of this Court. According to the news items published the next day in the Hindustan Times, the Times of India and the Patriot, num-ber of persons spoke about the Act and the decision of this Court upon it. Among the speakers were Mr. R. ,!(. Khadilkar, Minister in the Ministry of Finance, Mr. A. S. R. Chari, Mr. Kumarman· glam, Mr. Prabhatkar, Mr. S. M. Joshi, M.P., Mr. Bhupesh Gupta M.P. and Mr. V. K. Krishna Menon M.P. These speakers criti· cised the decision. Mr. R. K. Khadilkar, the Hindustan -Times reported, said that such decisions 'do not enhance the prestige of the Judiciary', that such acts on the part of the highest Court 'will only encourage Naxalites who have rejected constitutional means to bring about socialism' and that the judgment would be treated with 'more and more contempt by ordinary people'. He observed that the situation would be rectified by Parliament because ten Judges 'sitting in an ivory towe.:' could not sit over the verdict of Parliament which represented the people. The Times of India report said that Mr. Khadilkar said that 'Government would soon bring forward an amending measure to offset the dangerous im-plications for social progress of the community of the Supreme E_ Court judgment in the Bank Nationalisation case', that if necessary the issue whether Parliament or the Supreme Court was the final arbiter of the people's will should be referred to the people and mandate taken from them, and quoted Pandit Nehru that it was never the intention of the Constitution to make the Supreme Court 'the third house of correction". "I:he Patriot reported that 'attempts to utilize community savings lying in banks for the \\(?~[0]re of the common man have been blocked by the judiciary', that "!;e Supreme Court could not be acc;epted as the third chamber of -legislature ';that he did not 'want to threaten the judiciary' but Parlian1ent would have 'to take steps to respect the ~dings of the people for stabilizing democracy'. Mr'. Khadilkar also wished that the judiciary would take note 'of the changing situation and helped to transform the society for the benefit of the common man.' The three reports also describe<l what the other speakers had said at the meeting.

On February 26, 1970, two petitioners (Mr. Krishna Rao Kaushik M.P. and Lt. Col. H. R. Pasricha) swore an information based on the newspaper reports (with copies annexed) that serious contempt of this Court was committed by Mr. R. K. Kha-dilkar inasmuch as his speech had clear tendency to affect the dignity and prestige of this Court and there was danger of grave 13 Sup. cr;10-4

mischief in the administration of justice and the confidence of the whole cominunity in the administration of justice was bound to be undermined. Two affidavits sworn in support were based on the newspaper reports.

As some of the alleged observations, particularly those reported in the Hindustan Times, prima facie exceeded the bounds of legi-timate criticism, notice was issued to Mr. Khadilkar to show cause why action should not be taken against him. In reply Mr. Khadilkar filed an affidavit denying the main allegations. He stated in his affidavit as follows :

"I am firm believer in the independence of .iudi-ciary as an integral part 'of our democratic polity. I am in entire agreement with the sentiment expressed in para 1 of the petition, viz. that the dignity of the Hon'ble Supreme Court must be maintained and the administra-tion of justice should not be allowed to be undermined in this country.· I have deep faith in the social and economic objectives of our Constitution as enshrined in the Directive Principles of the Constitution and {he de-mocratic and corn;titutional methods of achieving them. Indeed, by oath of office, I am duty bound to uphold these objectives of our Constitution."

Jn reply to the specific charge of making statements tending to vilify the\ Judges and to bring the administration of justice into hatred and contempt, Mr. Khadilkar denied having made the state-ment attributed to him by the Patriot 'that attempts to utilize com-munity savings in the banks for the welfare of the common man had been blocked by the judiciary' and the statements attributed ;to him by the Hindustan Times to the effect that-

"(a) The majority decision in the Bank case "did not enhance the prestige of the Judiciary".

(b) Supreme Court judgment would be treated with "more and more contempt by ordinary people".

(c) The judiciarv had persistently failed to interpret the Constitution and remained static.

(d) Ten Judges sitting in ivory tower could not sit in judgment over verdict of Parliament which repre-sented the people."

.He asserted that he had said :

". . . "no aspersions should be cast on the judiciary and even though the decision had far-reaching conse-quences. I pointed out, that the judgment was cauti-ously word.ed and the learned Judges had not challenged

I\ the authority of Pa.rliament to bring forward measure of nationalisation".

He claimed to have added :

"No desire to cast aspersions on the judiciary and would very much like to see its prestige remained high n and its image untarnished. We cannot, however, avoid pointing out wherein according to us the decision is er-roneous primarily by reason of its consequences for at-tempts at social reform."

He explained what he had said by recalling his speech. It is not necessary to quote his version. He complained that the news-c papers had picked out ideas but put them in their own words and that it was not always possible to contradict the newspapers. He expressed his views on the instituton of property as fundamental right to which it is not necessary to refer here. He concluded by saying-

-"I may also state that in my comments on the Bank Judgment, no improper motives were attached to the Hon'ble Judges. There. was no malice either against the Hon 'ble Judges or the institution of Supreme Court, the independence of which I honestly cherish."

In support of his own affidavit, Mr. Khadilkar exhibited affidavits from Messrs. Mohan Kumarmangalam, A. S. R. Chari and S. M. Joshi. In these affidavits (which are insissima verba) support was given to the denials of Mr. Khadilkar.

At an earlier hearing, the petitioners promised to file affidavit$ of reporters etc. presen.t at the meeting. At the reslimed hearing no affidavits were filed on the ground that the journalists follow-•• ing their code of conduct did not wish to file any material unasked and request was, therefore, made to summon them in the interest of justice. We did not think it necessary to prolong the hearing · of the case as on the material before us there was nothing to con-tradict the affidavits which deny the accuracy of the newspaper re-ports. We accordingly closed the case for orders.

There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism:- This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves in JYlSsession of all truth or hold that wherever others differ from them, it is so far erro;. No one is more conscious of his limitations and fallibility tha1'l Judge but because. of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others.

Further the supremacy of legislature under written Constitu-tion is only within what is in its power but what is within its power and what is not, when any specific act is challenged, it is for the courts to say. If that were realised much of the misunderstanding would be avoided and the organs of Government would function truly in their own spheres. We are constrained to say also that while fair and temperate criticism of this Court or any other Court· even if strong, may be actionable, attributing improper motives, or tending to bring Jud~s or courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of w_hich notice must and will be taken. Res-pect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant. Those who· err in their criticism by indulging in vilification of the institution of Courts, administration of justice and the instruments through which the administration acts, should take heed for they will act dt their own peril. We think this will be enough cautior to persons embarking__ on the path of criticism. With ,these word> we order the papers to be filed.

R. l( P. S.