Criminal Contempt Petition No.1 of 1994

8th October, 2001

Petitioner Counsel: Mr. G. Y. GHAROTE
Respondent Counsel: Mr. V. R. MANOHAR, Mrs. KHADE

Cases Cited:
Arunkumar Vs. Wasudeorao, 1996(1) Mh.L.J.491 [Para 9]
Harish Vs. Bal Thackeray, 1997(2) Mh.L.J.19 [Para 9]
Pritam Pal Vs. High Court of M.P., A.I.R. 1992 SC 904 [Para 9]
Video Movies Vs. D. Ramanujam, A.I.R. 1986 Mad.119 [Para 9]
Shri. Surya Prakash Khatri Vs. Smt. Madhu Trehan, NLR J-6 [Para 9]
Pallav Sheth Vs. Custodian, 2001(5) SCALE 127 [Para 10]
State of Kerala Vs. M. S. Mani, 2001(6) SCALE 258 [Para 10]
P. N. Duda Vs. P. Shiv Shankar, AIR 1988 SC 1208 [Para 10]
J. R. Parashar Vs. Prashant Bhushan, 2001(5) SCALE 524 [Para 10]
C. Ravichandran Iyer Vs. Justice A. M. Bhattacharjee, 1995(5) SCC 457 [Para 11]

JUDGMENT

J. N. PATEL, J. :- Heard Mr. Gharote, learned Counsel for the petitioner, Mr. V. R. Manohar, Senior Counsel for the respondents and Mrs. Khade, A.P.P. for the state.

2. This petition was filed with a prayer that the respondent nos.1 to 4 be proceeded for Criminal Contempt of this Court as defined under section 2(c)(1) read with Section 12 of the Contempt of Courts Act, and so also under Article 215 of the Constitution, and the contemners be punished according to law. It was in reference to an article written by respondent no.1 in the evening daily "KHABAR", which was published on 08.09.1993, in which the Author made certain scandalous remarks against the sitting Judge of this Court. This was an off-shoot of a requisition made by some members of the High Court Bar Association to convene emergent special General Body Meeting of the Association to discuss and consider the following motion :

" This Association is regretfully constrained to voice the strong feeling of the Members of this Association in respect of judicial work being conducted with undue haste, without giving full hearing to them and with partisan attitude by the Hon'ble Shri. Justice A. A. Desai. This Association expresses its displeasure regarding conduct and behavior in Court of Hon'ble Justice Mr. A. A. Desai. The Association requests the Hon'ble the Chief Justice, Bombay High Court to transfer him from this Bench or not to allot him any Court work. The Chief Justice is requested to consider this request and pass appropriate orders within one week. It is further resolved that the Members of the Association shall abstain from attending work in his court from tomorrow". (Annexure - I to the petition).

3. The author of the letter on the basis of the said proposed motion, wrote an article in a form of open letter addressed to the sitting Judge of this Court.

4. The Contemners on being served with the notice at the first instance have expressed their unconditional and unqualified apology in the matter, and has stated that they hold the judiciary in the highest esteem and hereinafter would do no act or deed to intentionally or unintentionally adversely affecting the majesty and sanctity of the judiciary.

5.

6. We were informed that Contempt Petition No.11/1993, was also filed in this Court, by one Jagdish Gaidhane and other Advocates, against the members of the Bar for convening the said meeting and passing the proposed resolution. The said petition was taken up for hearing by this Court on 28.04.1999, and after hearing the learned Counsel for the parties this court passed the following order :

" We have perused the petition. Guided by consideration of necessity of maintaining cordial relations amongst the members of Bar themselves on one hand and in between the Bench and the Bar on the other hand and further having regard to the entire backdrop and lapse of time we are reluctant to entertain the complaint as sought to be made out in the instant petition at this juncture. We, therefore, drop the instant proceedings and dismiss the petition."

7. When we took the present petition for hearing the petitioner who is an Advocate of this Court, submitted that the main petition when it came for consideration of this Court, this Court took a decision to drop the proceedings and dismissed the petition, and as such he is not keen to proceed with the matter.

8. We felt that the Bar should address us on the issue, as now a days it has become a common practice that people in general do attack the institution in various manners. A catena of decisions placed before us itself demonstrates that all is not well with the institution, and therefore rather than dropping the proceeding by accepting the apology on the part of the contemners, we thought that we would try to address at the core-issue of the matter, as it is necessary to hold the majesty and dignity of the institution so that it continues to command the respect of the litigants. There is no manner of doubt that the common man still has faith and avowed respect for the judiciary which is held in highest esteem as protector of liberty, fundamental and statutory rights of citizen of this Country.

9. Mr. Gharote, the learned Counsel appearing for the petitioner addressed us on the merits of the matter, and submitted that the petitioner has only drawn the attention of this Court to the publication which scandalizes and tends to lower down the authority of this Court, by publishing such letter addressed to the sitting Judge of this court, and that it is left to the court to take suo motu action in the matter. Mr. Gharote has cited the case of (i) Arunkumar vrs Wasudeorao 1996(1) Mh.L.J. 491; (ii) Harish ..vrs.. Bal Thackeray 1997(2) Mh.L.J. 19; (iii) Pritam Pal vrs High Court of M.P. A.I.R. 1992 S.C. 904; (iv) Video Movies Vs. D. Ramanujam, A.I.R. 1986 Mad. 119; (v) Shri.Surya Prakash Khatri vrs Smt. Madhu Trehan and others; Dr. B. L. Wadhera vrs Smt. Madhu Trehan and others. N.L.R. J-6.

10. On the other hand Mr. Manohar, the learned senior counsel submitted that technically the petition may not be maintainable for want of consent of the Advocate General and placed reliance on the judgment rendered by Supreme Court in case of (i) Pallav Sheth vrs Custodian and others. 2001(5) SCALE 127; (ii) State of Kerala vrs M. S. Mani and others 2001 (6) SCALE 258. Mr. Manohar submitted that the article can also be defended on the ground of fair criticism and referred to the case of (i) P. N. Duda vrs P. Shiv Shankar and others A.I.R. 1988 SC 1208; (ii) J. R. Parashar and others vrs Prashant Bhushan and others 2001 (5) SCALE 524.

11. We have been addressed on various issues in the matter and catena of authorities have been placed before us. Initially we thought that we would examine the various aspects of the matter, and arrive at a conclusion with a view to come up with solution in such matters so that in future such things do not occur. But then we find after going through the various authorities cited, to mention in particular the case of C. Ravichandran Iyer vrs Justice A. M. Bhattacharjee, 1995 (5) SCC 457, that we will be making a futile exercise as the Supreme Court has already dealt with various aspects of the matter which cover the subject matter before us. The Supreme Court held :

" Every action or omission by a judicial officer in the performance of his duties which is not a good conduct necessarily, may not be misbehavior indictable by impeachment, but its insidious effect may be pervasive and may produce deleterious effect on the integrity and impartiality of the Judge. Every misbehavior in juxtaposition to good behavior, as a constitutional tautology, will not support impeachment but a misbehavior which is not a good behavior may be improper conduct not befitting to the standard expected of Judge. Threat of impeachment process itself may swerve a Judge to fall prey to misconduct but it served disgrace to use impeachment process for minor offences or abrasive conduct on the part of a Judge. The bad behavior of one Judge has a rippling effect on the reputation of the judiciary as a whole. When the edifice of judiciary is built heavily on public confidence and respect, the damage by the obstinate Judge would rip apart the entire judicial structure built in the constitution. Bad conduct or bad behavior of a Judge, therefore needs correction to prevent erosion of public confidence in the efficacy of judicial process or dignity of the institution or credibility to the judicial office held by the obstinate Judge.

When the Judge cannot be removed by impeachment process for such conduct but generates wide spread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace ?

The Bar Council, therefore is enjoined by the Advocates Act to maintain high moral, ethical and professional standards which of late is far from satisfactory. Their power under the Act ends thereat and extends no further Article 121 of the Constitution prohibits discussion by the members of Parliament of the conduct of any Judge of the Supreme Court or of High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as provided under Article 124(4) and (5) and in the manner laid down under the Act, the Rules and the rules of business of parliament consistent therewith. By necessary implication, no other forum or fora of platform is available for discussion of the conduct of a Judge in the discharge of his duties as a Judge of the Supreme Court or the High Court, much less a bar Council or group of practising advocates. They are prohibited to discuss the conduct of a Judge in the discharge of his duties or to pass any resolution in that behalf.

Scurrilous abuse of a Judge or court, or attacks on the personal character of a Judge, are punishable contempts. Punishment is inflicted, not for the purpose of protecting either the court as a whole or the invidual Judges of the court from repetition of the attack, but for protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a Judge or a court. Criticism of a Judge's conduct or of the conduct of a court even if strongly worded, is, however, not contempt, provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a Judge or to the impartiality of a Judge or a Court. The power to punish the contermner is granted to the court not because Judges need the protection but because the citizens need an impartial and strong judiciary.

The threat of action on vague grounds of dissatisfaction would create a dragnet that would inevitably sweep into its grasp the maverick, the dissenter, the innovator, the reformer - in one word the unpopular. Insidious attempts pave way for removing the inconvenient. Therefore, proper care should be taken by the Bar Association concerned. First. it should gather specific, authentic and acceptable material which would show or tend to show that conduct on the part of a Judge creating a feeling in the mind of a reasonable person doubting the honesty, integrity, impartiality or act which lowers the dignity of the office but necessarily, is not impeachable misbehavior. In all fairness to the Judge, the responsible office-bearers should meet him in camera after securing interview and apprise the Judge of the information they have with them. If there is truth in it, there is every possibility that the Judge would mend himself. Or to avoid embarrassment to the Judge, the office-bearers can approach the Chief Justice of that High Court and apprise him the situation with material they have in their possession and impress upon the Chief Justice to deal with the matter appropriately.

It is true that the Supreme court has neither administrative control over the High Court nor power on the judicial side to enquire into the misbehavior of a Chief Justice or Judge of a High Court. When the Bar of the High Court concerned reeasonably and honestly doubts he conduct of the Chief Justice of that Court, necessarily the only authority under the constitution that could be tapped is the Chief Justice of India, who in common parlance is known as the head of the judiciary of the Country. The Chief Justice of India was given centre state position. The Primacy and importance of the office of the Chief Justice, was recognized judicially by the Supreme Court in Veraswami case.

Therefore, where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made by the Bar Association through its office bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the information with him. When the Chief Justice of India is seized of the matter to avoid embarrassment to him and to allow fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief Justice of India to appropriately deal with the matter. This is necessary because any action he may take must not only be just to all concerned, i.e., it must not even appear to have been taken under pressure from any quarter. The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, and after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nipping in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary but would also avoid needless embarrassment of competent proceedings against the office-bearers of the Bar Association and group libel against all concerned. The independence of judiciary and the stream of public justice would remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging reputation of the particular Judge, the Bar Association could take up the matter with the Chief Justice of the High Court and await his response for the action taken thereunder for a reasonable period. In case the allegations are against Chief Justice of High Court, the Bar should bring them directly to the notice of the Chief Justice of India. On receipt of such complaint, the Chief Justice of India would in the same way act as stated above qua complaint against a Judge of the High Court, and the Bar would await for a reasonable period the response of the Chief Justice of India.

Thus yawning gap between proved misbehavior and bad conduct inconsistent with the high office on the part of a non-cooperating Judge/Chief Justice of a High Court could be disciplines by self-regulation through in-house procedure. This in-house procedure would fill in the constitutional gap and would yield salutary effect.

Since in this case Respondent 1 has already demitted the office of Chief Justice of Bombay High Court, it would form a precedent for the future."

12. Therefore, in our opinion it will be in the fitness of things that we accept the apology tendered by the contemners, particularly in the background that this Court has taken a decision to drop the proceedings in respect of the proposed resolution moved by some of the members of the Bar in the matter.

13. Before parting with the order, we may observe that the Bar not only acts as watch dog of the institution, but is also its mouthpiece and it shares greater responsibility in maintaining the dignity and decorum of the institution, and so also its majesty in the eyes of the people. We are sure the Bar and Bench would make all endeavour to see that the institution is not maligned by their conduct and that they uphold the dignity and majesty of the institution, and maintain purity of the stream of justice.

14. We were informed that at the relevant time when some members of the Bar took up the issue the decision in C. Ravichandran Iyer's case was not there, to have guided the members of the Bar, to enable them to take recourse to the in-house remedy provided in the said decision by the Supreme Court, otherwise, this situation may not have arisen.

15. We are also informed that pursuant to the requisition moved by some of the members of the Bar, the meeting was held but the President of the Bar Association in his own wisdom did not take up the resolution for discussion, on the ground that it would amount to contempt, if this, was so, we really appreciate the decision of the President of the Bar Association, to have saved the situation from going to worst.

16. We have examined the article (Annexure - II) authored by respondent no.1 and we have no doubt in coming to the conclusion that it was scurrilous attack on the Judge of this Court and amounts to scandalizing and lowering the authority of the court. Therefore we have no hesitation to hold that the contemners have committed criminal contempt by writing such letter and publishing it, but in the given facts and circumstance, we are accepting the unconditional apology tendered by the contemners and drop the proceedings. The petition stands disposed off accordingly.

Order accordingly.