IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 Cont.Cas.(Crl.).No. 1 of 2009(S) -------------------------------- SUO MOTU CONTEMPT CASE (CRL) INITIATED UNDER SECTIONS 2(c) AND 15 OF THE CONTEMPT OF COURTS ACT, 1971 R/W RULE 7 OF THE CONTEMPT OF COURTS (HIGH COURT OF KERALA) RULES. RESPONDENT(S): --------------- 1. SRI. M.S. RAVI, THE PRINTER AND PUBLISHER " KERALA KAUMUDI ", KERALA KAUMUDI PVT LTD., CHANDRIKA BUILDINGS M.G. ROAD, KOCHI 682 011. 2. SRI. M.S. MANI, EDITOR-IN-CHIEF, "KERALA KAUMUDI", KERALA KAUMUDI PVT. LTD., CHANDRIKA BUILDINGS, M.G. ROAD, KOCHI 682 011. 3. SRI. DEEPU RAVI, MANAGING EDITOR, "KERALA KAUMUDI", KERALA KAUMUDI PVT LTD., CHANDRIKA BUILDINGS, M.G. ROAD, KOCHI 682 011. 4. SRI. M.S. MADHUSOOSANAN, EDITOR OF KERALA KAUMUDI, KERALA KAUMUDI PVT LTD., CHANDRIKA BUILDINGS, M.G. ROAD, KOCHI 682 011. THIS CONTEMPT OF CASE (CRIMINAL) HAVING COME UP FOR ORDERS ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- Contempt Case (Crl.) NO.1/2009 ----------------------------------------- Dated 19th January, 2009. JUDGMENT Balakrishnan Nair, J. This Contempt of Court proceeding was taken suo motu by the High Court under Sections 2(c) and 15 of the Contempt of Courts Act, 1971 read with Rule 7 of the Contempt of Courts (High Court of Kerala) Rules, 1988. It is initiated, against the publication of an editorial by the Kerala Kaumudi daily on 18.12.2008, concerning the applications for bail pending before this Court at the relevant time, filed by the accused in a case known as Abhaya case. The respondents are the Printer and Publisher and Editors of the said daily. The said editorial contains certain allegations against the learned Judge hearing the bail applications and also against the Hon'ble Acting Chief Justice of this Court. It was stated that the learned Judge was suspected to be under the influence of persons allegedly interested in the accused and the application of the C.B.I for posting the bail applications before another Bench was rejected by the Hon'ble Acting Chief Justice on COCR No. 1/2009 2 communal grounds. 2. The information regarding the publication of the above editorial was placed before the Hon'ble Acting Chief Justice on the administrative side under Rule 7(i) of the Contempt of Courts (High Court of Kerala) Rules, 1988 (hereinafter referred to as “the Rules”). The Hon'ble Acting Chief Justice designated another learned Judge of this Court to take action in the matter. The learned Judge on finding that the publication of the editorial will, prima facie, amount to commission of criminal contempt of court, as defined under Section 2(c) of the Contempt of Courts Act, 1971 (hereinafter referred to as”the Act”), ordered to place the information for preliminary hearing before the Bench dealing with contempt matters as per the roster. Before placing the matter before the Bench, copies of the relevant papers concerning the suo motu proceedings were furnished to the learned Advocate General of the State under Rule 8A of the Rules. Thereafter, the case was listed before us for hearing on 15.1.2009 under Rule 9(i) of the Rules. Notice to the respondents would be issued, if only the Bench is also satisfied that a prima facie case has been made out, after preliminary hearing. At the stage of preliminary hearing, the learned Advocate General alone is before the Court to argue the matter. 3. Sri.C.P.Sudhakara Prasad, learned Advocate General made the COCR No. 1/2009 3 following submissions before us:- Going by Section 15 of the Act, suo motu proceedings can be taken only by the High Court. The High Court, as contemplated under Article 216 of the Constitution of India, shall consist of a Chief Justice and such other Judges, as the President may from time to time appoint. In the case on hand, the contempt case was posted before the Bench dealing with contempt matters for preliminary hearing, not based on the decision of the High Court, but by the decision of a Judge designated by the Acting Chief Justice. So, the proceedings initiated are vitiated and not in accordance with the provisions of the Act. The Rules, to the extent they are against the provisions of the Act, should be ignored or the same should be read down in the light of Section 15 of the Act, it is submitted. The learned Advocate General also brought to our notice several news items published in Mathrubhoomi daily on various dates, highlighting the allegations that invisible hands are working to interfere with the investigation of Abhaya case and to hush up the same. The learned Advocate General also brought to our notice a news item, based on an interview, published in Deepika daily, which has the tendency to interfere with the due course of justice. An application for permission to initiate contempt proceedings is pending before the learned Advocate General, for publishing the said interview in Deepika daily. The intention of the COCR No. 1/2009 4 editorial in Kerala Kaumudi was to warn against interference with the case by external forces. The newspaper never intended to interfere with the due course of justice by itself. In fact, in public interest, as a responsible newspaper, Kerala Kaumudi was voicing its concern against the alleged interference with the due course of justice by interested persons. When the editorial is read as a whole, it would show no disrespect for the judiciary. But, on the contrary, it was intended against interference with the functioning of the judiciary. 4. The learned Advocate General also brought to our notice the judgment of the Court of Appeal in Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn (No.2) [(1968)2 W.L.R. 1204]. The relevant portion of the said judgment rendered by Lord Denning reads as follows: “That article is certainly critical of this court. In so far as it referred to the Court of Appeal, it is admittedly erroneous. This court did not in the gaming cases give any decision which was erroneous, nor one which was overruled by the House of Lords. But is the article a contempt of court? This is the first case, so far as I know, where this Court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. COCR No. 1/2009 5 Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticisms, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right.” The learned Advocate General also brought to our notice a decision of this Court in Radhakrishnan v. Kerala Lok Ayukta [2006(1) K.L.T. 661], wherein this Court observed as follows: “Judges normally, do not answer to criticisms against their orders and judgments. Criticism of orders in pending matters,may have the effect of polluting the stream of justice, which may, in certain cases, amount to contempt of court. But, normally, dignified silence should be the eloquent answer to such criticisms. Once the final judgment is passed, citizens have a right to criticise it, informed criticism of judgments, which have become final, should be welcomed also. COCR No. 1/2009 6 7. Courts and Tribunals should not be seen to be locking horns with any one, criticising them. They should not lose equanimity. Not only that, justice should be done and it should also appear to be done. Judges can be disabused on any point and they should appear to be so also.” The learned Advocate General next relied on the decision of the Apex Court in P.N.Duda v. P.Shiv Shanker [(1988)3 SCC 167]. The relevant portion of the said judgment reads as follows: “28. As we have mentioned before, the speech of the Minister has to be read in its entirety. In the speech as we have set out hereinbefore it appears that Shri.P.Shiv Shanker was making a study of the attitude of this Court. In the portion set out hereinbefore, it was stated that the Supreme Court was composed of the element from the elite class. Whether it is factually correct or not is another matter. In our public life, where the champions of the down-trodden and the politicians are mostly from the so-called elite class, if the class composition is analysed, it may reveal interesting factors as to whether elite class is dominant as the champions of the oppressed or of social legislations and the same is the position in the judiciary. But the Minister went on to say that because the judges had their 'unconcealed sympathy for the haves' they interpreted the expression 'compensation' in the manner they did. The expression 'unconcealed' is unfortunate. But this is also an expression of opinion about an institutional pattern. Then the Minister went on to say that because of this, the word 'compensation' in Article 31 was interpreted contrary to the spirit and the intendment of the Constitution. The Constitution therefore had to be amended by the 1st, 14th and 17th Amendments to remove this 'oligarchic' approach of the Supreme Court with little or no help. The interaction of the decisions of this Court and the constitutional amendments have been viewed by the Minister in his speech, but that is nothing new. This by itself does not affect the administration of justice. On the other hand, such a study perhaps is important for the COCR No. 1/2009 7 understanding of the evolution of the constitutional development. The next portion to which reference may be made where the speaker has referred to Holmes Alexander in his column entitled '9 Men of Terror Squad' making a frontal attack on the functions of the U.S. Supreme Court. There was a comparison after making the quotation as we have set out hereinbefore, :'One should ask the question how true Holmes Alexander was in the Indian context.' This is also a poser on the performance of the Supreme Court. According to the speaker twenty years of valuable time was lost in this confrontation presented by the judiciary in introducing and implementing basic agrarian reforms for removal of poverty what is the ultimate result. The nation did not exhibit the political will to implement the land reform laws. The removal of the Maharajas and Rajas and privy purses were criticised because of the view taken by this Court which according to the speaker was contrary to the whole national upsurge. This is a study in the historical perspective. Then he made a reference to the Kesavananda Bharati [(1973)4 SCC 225] and Golak Nath [AIR 1967 SC 1643} cases and observed that a representative of the elitist culture of this country, ably supported by industrialists and beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper case [(1970)1 SCC 248]. This is also a criticism of the judgment in R.C.Cooper case. Whether that it is right or wrong is another matter, but criticism of judgments is permissible in a free society. There is, however, one paragraph which appears to us to be rather intemperate and that is to the following effect: Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court. 29. This, of course, if true, is a criticism of the laws. The Supreme Court as it is bound to do has implemented the laws and in implementing the laws, it is a tribute to the Supreme Court that it has not discriminated between persons and persons. Criminals are entitled to be judged in accordance with COCR No. 1/2009 8 law. If anti-social elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The courts are not deterred by such criticisms.” The learned Advocate General also brought to our notice a passage from “The Due Process of Law” authored by Lord Denning. The relevant portion reads as follows: “I regard it as of the first importance that the law which I have just stated should be maintained in its full integrity. We must not allow 'trial by newspaper' or 'trial by television' or trial by any medium other than the courts of law. But in so stating the law, I would emphasise that it applies only 'when litigation is pending and is actively in suit before the court'. To which I would add that there must appear to be 'a real and substantial danger of prejudice' to the trial of the case or to the settlement of it. And when considering the question, it must always be remembered that besides the interest of the parties in a fair trial or a fair settlement of the case there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make fair comment on such matters. The one interest must be balanced against the other. There may be cases where the subject matter is such that the public interest counterbalances the private interest of the parties. In such case the public interest prevails. Fair comment is to be allowed. It has been so stated in Australia in regard to the courts of law.” Relying on the above authorities, the learned Advocate General submitted that even assuming the contempt of court case is properly instituted, the proceedings initiated should be dropped, as the criticism made by the newspaper was to safeguard public interest and done in good faith. COCR No. 1/2009 9 5. We will deal with the preliminary objection made by the learned Advocate General regarding the maintainability of the contempt proceedings first. Section 15(1) of the Act reads as follows: “15. Cognizance of criminal contempt in other cases:-- (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by - (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General, or (c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.” The above provision would show that the action for criminal contempt has to be taken on the motion of the High Court and not on the motion of the Chief Justice or the Judge designated by him. When a decision is to be taken by the High Court, it means, the Full Court consisting of the Chief Justice and all other Judges. Article 216 of the Constitution of India, dealing with the composition of the High Courts, reads as follows: “216. Constitution of High Courts – Every High Court COCR No. 1/2009 10 shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.” But, the Rules framed by the High Court under the Contempt of Courts Act say that any information regarding commission of contempt for initiation of suo motu proceedings should be placed before the Chief Justice on the administrative side. The Chief Justice may decide himself whether it is expedient or proper to take action under the Act and direct the said information be placed for preliminary hearing. This can be done by the Judge designated by the Chief Justice for the said purpose also. It is a decision on the administrative side. As per our Rules, once such a decision is taken, the matter should go directly to the Bench authorised to hear contempt matters as per the roster. But, in the light of the provisions of Section 15 of the Act, the matter has to be placed before the Full Court and if only the Full Court decides to take action, the matter can be placed before the Bench for hearing. When the High Court is empowered to do something as per the Constitution or any other Act, if it is an administrative function (meaning some function other than judicial function), it has to be done by the Full Court. If it is a judicial function, it has to be done by the appropriate Bench, as provided in the Kerala High Court Act or under the relevant enactment. The decision of this Court to place the contempt matter COCR No. 1/2009 11 before the Bench for hearing, is one, which should be taken by the Full Court, as Section 15 of the Act authorises only the High Court and not the Chief Justice to take action. In this case, admittedly, the matter has not been placed before the Full Court for its approval for initiating contempt proceedings. So, the proceedings taken in this case for placing the matter for preliminary hearing are ultra vires of Section 15 of the Act. It is declared so. In view of our above finding, it is unnecessary to deal with the other contentions raised by the learned Advocate General. Accordingly, further proceedings in the matter are dropped and the contempt case is closed. Needless to say, this judgment will not affect the powers of the Full Court to decide to take action in this matter, if it thinks fit. K.BALAKRISHNAN NAIR, JUDGE. K.SURENDRA MOHAN, JUDGE. Nm/