In re : Bai Amrit (1884) 8 Bombay 380.

S.S. Sandhawalia, C.J.

On the 9th of May, 1982 the Hindustan Times, Delhi in its Sunday magazine section prominently published an article captioned as `The Judge''s relative'' spread over the whole of the first page thereof. Its contents undoubtedly did raise ripples in the legal circles within the country. The Allahabad High Court initiated proceedings for contempt against the newspaper. Compelled to take notice the certain offending passages therein which were particularly directed against this High Court following order was recorded on the 3rd of June, 1982 :

"I have with the utmost care perused and reperused the contents of the article captioned as `the Judge''s relative'' (including the cartoon) prominently published in the issue of the Hindustan Times dated the 9th of May, 1982. Its tone, its tenor, and its tendancy to scandalise the higher judiciary in general and this Court in particular and to hold them up to ridicule and contempt is writ too large on its face to call for any further elaboration. Certain factual allegations therein are not only false but totally baseless. A prima facie case of criminal contempt under section 12 of the Contempt of Courts Act is thus clearly disclosed. In accordance with the Full Bench judgment in Court on its own motion v. Kasturi Lal and others, A.I.R. 1980 Punjab and Haryana 72 proceedings be initiated against the condemners."

In pursuance thereto, notices under rules 5 and 6 of the Contempt of Courts, Punjab and Haryana Rules 1974 were issued to four respondents, namely, Messrs B.M. Sinha the author of the article, Khushwant Singh the Editor of the newspaper, Sukumar Chatterjee Cartoonist, and G.S. Rajhans Printer and Publisher of the Hindustan Times, New Delhi. In response thereto the aforesaid four respondents filed affidavits in a somewhat contentious tone by way of reply to the contempt notices on the 4th of October, 1982. However, on thoughtful consideration later (apparently in the maturer hands of their learned counsel) wiser counsels patently prevailed and an application was moved on the 16th of March, 1983 praying that the affidavits filed earlier be allowed to be withdrawn altogether and fresh affidavits enclosed to the said application be substituted therefore and read as reply to the notices. The conciliatory, if not a contrite therein, is sampled by the following in the affidavit of the Editor :

"....... The judiciary, one of the most cherished institutions in our country, has been bulwark of democracy and the media wished and desires that it continues to perform its functions within the constitutional framework with full public confidence in the administration of justice. It is the duty of the media to place before the public various aspects about this institution, which are agitating the public. The objective of course is that in doing this the institution, aware of criticism from outside, is able to deal with it in its own manner. It is in this spirit that the said article was written and published. The object was not the denigration of the institution in the eyes of the public.

and then.

The above articles does not and did not express the view of the management of the Hindustan Times and certainly not the views of the deponent. I have the highest regard for the institution of the judiciary, very much value its independence and am convinced of the fact that the judiciary in India has played a vital role in protecting the rights of citizens. In allowing the said publication of the article. I was merely placing a point of view of the members of the legal profession as well as those closely connected with it on a matter of public interest and national importance, which view I bona fide believed, they were entitled to express. It is in this light that the Hindustan Times participation in the national debate which has agitated the public mind. I had not slightest intention or motive to scandalise the Court, to lower the prestige of judiciary or to obstruct the administration of justice in any manner. I reiterate my high regard and esteem for the judiciary in the country."

Reverting back to the Criminal Miscellaneous Application No. 1488 of 1983, dated 16th March, 1983, Mr. R.N. Narulla appearing for the respondentcondemners was unable to cite any express provisions or directprecedent which could possibly warrant the wholesale withdrawal of affidavits filed by way of reply in a case of contempt and their substitution in toto. We were somewhat sceptical of the maintainability of the said application and notice thereof was issued to the counsel opposite.

On March 21, 1983 when the matter came up for arguments, Mr. Venugopal, the learned Senior Counsel appearing on behalf of the High Court highlighted the fact that contempt procedure were criminal or in any case quasi criminal in nature, and, therefore, a totality withdrawal or the substitution of the affidavits and the plea of the condemners which would be in the nature of the statement of an accused person, would not be permissible, on principle. This apart he also placed reliance, on `In re : Bai Amrit (1884) 8 Bombay 380; R.P.C. Connor v. P.G. Sampath Kumar, AIR 1953 Madras 897, and Manalal Rikhbaji and others v. Mohanlal Hari Lal Rathi and others, AIR 1963 Bombay 94, for contending that before the High Court it being a Court of Record, a document duly filed could not be wiped off the record and be withdrawn as if it did not exist at all.

Faced with the aforesaid stand Mr. Soli Sorabjee learned Senior Counsel for the four respondents had adroitly stated at the very threshold that he would not press the specific claim of the wholesale withdrawal of earlier affidavits. He took the stand that he would rest content if the fresh affidavits now being filed were read as explanatory to or in any case as clarificatory in nature of the earlier ones. In view of this and because of the conciliatory and the contrite stand taken on behalf of the respondents by their counsel to which a reference follows hereinafter, we do not feel compelled to adjudicate on this legal issue. However, we cannot help noticing that but for the mature and sagacious handling of the matter by Mr. Soli Sorbajee, these proceedings would perhaps have undoubtedly taken a different turn.

Adverting now to the merits it must in fairness be noticed that Mr. Venugopal, the learned Senior Counsel appearing for the High Court placed primary reliance on the Full Bench judgment in Court on its on motion v. Bansi Lal and others, 1978(2) ILR Punjab and Haryana 63 for contending that despite discordance on other points it has been unomimonrly held there that no plea of truth or justification is remissible by way of defence charge of contempt either of a Court of Record or a court subordinate. It was highlighted that this categoric enunciation of the 1000 was rested on the even surer footing of the observations to the same effect in Shri C.K. Daphtary Sr. Advocate and ors. v. Shri O.P. Gupta, AIR 1971 SC 1132. This apart learned counsel presented the refreshing angle in the light of Article 121 which is in the following terms :

"Article 121. No discussion shall taken place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting and address to the President praying for the removal of the Judge as hereinafter provided.

Elaborating the plain language of the aforesaid Article Mr. Venugopal had submitted that even the Press could not claim a right greater than Parliament itself for making scurrilious attacks on the alleged conduct of the higher echelons of the judiciary.

We record with appreciation the ability and erudition with which the learned counsel for both the sides had conducted this matter. Mr. Soli Sorabjee on behalf of the four respondents raised the issue to a higher plane and candidly stated that he would not wish to raise any hypertechnical objection and specious defenses. He primarily projected the great rapport that has always and indeed should continue to so exist betwixt a free Press and an independent judiciary to subserve the larger interest of the common man and the rules. Counsel submitted that the impugned article ''Judges relative" should not be viewed in a microscopic fashion and be must looked upon as a whole for its real intent. The basic stand that the vigorously and forcefully advocated was that the underlying intent of the respondents was not even remotely to commit contempt or cast the least aspersions on the fair name of this High Court, which without any odious comparisons ranks high in many fields within this country.

As regards the glaring inaccuracies and factual errors which were now admitted to have been committed in the said article Mr. Soli Sorabjee expressed his regrets and drew our attention to the following passage in respondent Mr. B.M. Sinha''s (the author) affidavit.

"In the process it is possible that certain inaccuracies crept in which I was not aware at that time. I might mention that the inaccuracies were not intentional and in case a particular individual is hurt by the inaccuracies, I being a responsible journalist, am not only prepared to correct it but also to apologise for the same to the individuals concerned."

In view of some ambivalence with regard to these inaccuracies we felt compelled to examine Mr. B.M. Sinha the author of the article in Court. His statement was duly recorded and forms part of the record. Be it said to his credit that he candidly admitted the factual errors and expressed his profound regret therefor. It was conceded that Mr. Anand Swaroop Senior Advocate of this Court was not even remotely related to Hon''ble Mr. Justice S.C. Mital though he had been erroneously and prominently projected as a cousin in the offending article. Similarly, it was admitted that Mr. Rajinder Swaroop Mittal Senior Advocate was in no way connected far from being related to the aforesaid learned Judge of this court though even a closer affinity of sonship was sought to be attached to him, it being the admitted position that in fact Mr. Justice S.C. Mital has no son at all.

It calls for particular notice that as regards the offending passage marked `Y'' in the notice the shifting stand now sought to be taken in the affidavit in reply was that this did not pertain to the High Court at all, but related to the judiciary subordinate to this High Court. Mr. Venugopal had then pinpointed that in the context in which the offending passage was laid, the illusion originally was distinctly to the High Court. However, in the alternative, it was forcefully contended that even assuming for a moment that the stand of the respondents was sustainable, then also this High Court was equally if not even more jealously the guardian of the dignity and respect of the subordinate judiciary, which of late has done yeoman''s service in rendering speedy justice at the grassroots to the people of both the States. This is perhaps not the place to enumerate the great achievements of the subordinate judiciary in the states of Punjab and Haryana in recent years in rendering impartial and speedy justice to the long suffering litigants and not only reversing the tide of arrears but virtually eradicating them Mr. Soli Sorabjee in this context was candid enough to admit that the passage marked `Y'' in the notice was indefensible and undertook to unreservedly withdraw the same.

After a brief deliberation, counsel for respondents had presented the following statement on behalf of the four contemners :

"The Hindustan Times did not intend to cast any aspersion on the Judges of the High Court of Punjab and Haryana or the subordinate Judiciary of Punjab and Haryana in publishing the undermentioned passage in the article of Mr. B.M. Sinha published in the Hindustan Times dated the 9th May, 1982 entitled. "The Judge'' relative" and regret the same :

"The situation in Punjab and Haryana is alleged to have gone beyond redemption because of a large number of judges belonging to a particular community. According to a senor lawyer in Chandigarh, the judiciary in Haryana has become a community Dharamshala."

The statement in the same article to the effect that Mr. R.S. Mital is the son of Mrs. Justice S.C. Mital and Mr. A.S. Mittal is the cousin of Mr. Justice S.C. Mital is incorrect and is regretted."

Mr. Soli Sorabji further undertook that the aforesaid statement would be published on the front page of the Hindustan Times, in its Sunday issue with in a period of three weeks from today. We may add as a postscript that in conformity with the aforesaid undertaking the Hindustan Times made amends by publishing the same prominently on the first page of its Sunday edition dated the 27th March, 1983.

In view of the above, the conciliatory and indeed the contrite stance exhibited by the respondents in the additional affidavits, the statement in Court of the author Shri B.M. Sinha; and the sagacious stand taken by their learned counsel, we discharge the notice of contempt issued against the condemners.

Ere we part with this judgment, the record must be put straight by pointing out that it was not, and indeed could never be, even remotely, the desire to muzzle any objective criticism of the justice system. It has been said and indeed rightly that justice is not a cloistered virtue and it must unflinchingly bear the gaze of fair comment, even outspoken comment. All that one would ask is that those who criticise the Judges would well remember that from the very nature of their office they cannot reply to their criticism. They cannot enter into public controversy. The more so, when it has the seeds or overtones of a political nature.