JUDGMENT P.T. Raman Nayar, J. 1. On the 9th November 1967, the respondent, who is the Chief Minister of this State, held a press conference, and a report of what he said at that conference appeared in the issue of the "Indian Express" of the 10th November as also in other newspapers. The report that appeared in the "Indian Express" has been referred to in the memorandum of charges served on the respondent as Ext. P1; and, in the counter affidavit filed by him, the respondent has stated that that report is substantially correct, though incomplete in some respects. The following is the relevant portion of the report: "Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set up has not undergone any change it continues to be so, Mr. Nambudiripad told a news conference this morning. He further said that Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot bellied rich man and a poor, ill dressed and illiterate person the judge instinctively favours the former, the Chief Minister alleged. The Chief Minister said that election of Judges would be a better arrangement, but unless the basic State setup is changed it could not solve the problem. Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the Constitutional provisions are practised. 'I have not taken any oath' the Chief Minister said 'that every word and every clause in the Constitution is sacred. Before that he had also taken an oath, Mr. Nambudiripad said, holding aloft a copy of the Marxist Party's programme and read out extracts from it to say that the party had always held that nothing much could be done under the limitations of the Constitution. Raising this subject of Constitution and judiciary suo motu at the fag end of his news conference the Chief Minister said so many reports have appeared in the press that Marxists like himself, Mr. A. K. Gopalan and Mr. Imbichi Bava (Transport Minister) were making statements critical of the judiciary 'presumably with the idea that anything spoken about the court is contempt of court.' His party had always taken the view, the Chief Minister said that judiciary is part of the class rule of the ruling classes. A. K. Gopalan and Mr. Imbichi Bava (Transport Minister) were making statements critical of the judiciary 'presumably with the idea that anything spoken about the court is contempt of court.' His party had always taken the view, the Chief Minister said that judiciary is part of the class rule of the ruling classes. And there are limits to the sanctity of the judiciary. The judiciary is weighted against workers, peasants and other sections of the working classes and the laws and the system of judiciary essentially serve the exploiting classes. Even where the judiciary is separated from the executive it is still subject to the influence and pressure of the executive. To say this is not wrong. The judiciary he argued was only an institution like the President or Parliament or the Public Service Commission. Even the President is subject to impeachment. After all, sovereignty rested not with any one of them but with the people. Even with regard to judges confidential records are being kept why? The judge is subject to his own idiosyncrasies and prejudices. 'We hold the View that they are guided by individual idiosyncrasies, guided and dominated by, class interests, class hatred, and class prejudices. In these conditions we have not pledged ourselves not to criticise the judiciary or even individual judgments.' This did not mean, he explained, that they could challenge the integrity of the individual judge or cast reflections on individual judgments, the Chief Minister contended. He did not subscribe to the view that it was an aspersion on integrity when he said that Judges are guided and dominated by class hatred and class prejudices. 'The High Court and the Supreme Court can haul me up, if they want he said." ' (A brief account that appeared in the "Mathrubhoomi" of the same date is also set out in the petitioner's affidavit. But we need not, concern ourselves with that since what is referred to in the memorandum of charges and is admitted by the petitioner to be correct is the report in the "Indian Express"). According to the petitioner, an advocate of this Court and a member of the Bar Councils of India and of this 'States, acting, it is said, at the instance of the latter body, and according to the President of the Kerala Advocates' Association, Ernakulam who has. According to the petitioner, an advocate of this Court and a member of the Bar Councils of India and of this 'States, acting, it is said, at the instance of the latter body, and according to the President of the Kerala Advocates' Association, Ernakulam who has. been allowed to intervene on behalf of that body, this public statement made by the respondent constitutes grave contempt of court in that it is calculated to so undermine the confidence of the people in the courts of this country as to interfere with the course of justice and undermine the authority of the law. 2. When questioned the commencement of the hearing, the respondent denied the charge and stated that he had nothing to add to the counter affidavit he had already filed after reading the copies of the petition, the affidavit, and the memorandum of charges earlier served upon him, and after fully understanding what the charge against him was. 3. This counter affidavit of the respondent runs to over fourteen closely typed pages and is largely devoted to an exposition of the respondent's particular political philosophy and his views on current political events. It is accompanied by a document, Ex. R1, which is said to be an extract of Chap.5 of the programme adopted in November 1964 by the Communist Party of India (Marxist) to which the respondent belongs. With all this we are not really concerned. That the statement was born out of firmly held and long cherished political convictions might be relevant as showing that it was deliberately and not lightly made, and that the respondent believes in what he has said. But, what those convictions are, and what the respondent thinks of current political events, is hardly relevant. 4. Para.3 of the counter affidavit is relevant. It runs thus: "The summary of the statement I made in the Press Conference on 9-11-1967, published in the Indian Express dated 10-11-1967 and quoted in para 5 of the affidavit, is substantially correct, though incomplete in some respects. It conveys the; ideas which I wanted to give expression to when I dealt with the subject in my Press Conference." No attempt is however made to show in what respects the summary is incomplete. 5. It conveys the; ideas which I wanted to give expression to when I dealt with the subject in my Press Conference." No attempt is however made to show in what respects the summary is incomplete. 5. It is difficult to make a summary of the counter affidavit, and, for the rest, I think that it should suffice to say that the respondent asserts that his statement was only a " fair criticism of the system of the judicial administration with a view to making it conform to our people's cherished objective of a really democratic, egalitarian society moving along the path of socialism." It was made by him out of a sense of duty as a political worker, as a legislator of standing, as the leader of the legislature of the State in order to educate public opinion and reform the administration. There is no aspersion cast on any particular judgment or any particular judge and for these reasons the statement cannot amount to contempt of court. It does not offend the majesty of the law or undermine the dignity of courts; it does not obstruct or tend to obstruct the flow of the stream of justice; it has not the tendency to lower the authority, dignity or prestige of the courts in the discharge of their duties and in the administration of justice and does not scandalise the judiciary of this State or of the rest of India. 6. The learned Advocate General who has appeared in response to notice supports the stand of the respondent that the statement is only fair and reasonable criticism of the judiciary as a whole, casting no aspersion on any particular judge or court, and that, therefore, it does not amount to contempt of court. 7. In 1968 KLT 157 , a case of contempt recently decided by two of us, we pointed out that three questions usually arise in cases of this nature. The first, in common with every criminal case, involves a definition of the offence charged. What constitutes contempt of court, and do the facts proved make out that offence? 7. In 1968 KLT 157 , a case of contempt recently decided by two of us, we pointed out that three questions usually arise in cases of this nature. The first, in common with every criminal case, involves a definition of the offence charged. What constitutes contempt of court, and do the facts proved make out that offence? The second, analogous to the question raised in procedural provisions of the law, both civil and criminal, requiring the sanction of, or a complaint by, a particular authority for the initiation of judicial proceedings, is whether, having regard to the public interest to be served, it is necessary or expedient that proceedings should be taken. For, the power to punish for contempt "should be used only from a sense of duty and under the pressure of public necessity" (Mc Lcod v. St. Aubyn 1899 AC 549 at 561) and the court will not punish for contempt unless there is such public necessity. And the third question is whether, even if there is a conviction, it is necessary to impose a sentence a question analogous to that, for example, under S.562 of the Criminal Procedure Code and, if it is, what the sentence should be. To these three questions a fourth must be added in this case, namely, whether, as contended by counsel for the respondent, the law of contempt of court as understood in this country, and the Contempt of Courts Act, 1952, are bad for offending Art.19(1)(a) of the Constitution. 8. Time and again the courts (including our Supreme Court) have said that the power to punish for contempt "is a weapon to be used very sparingly, and always with reference to the interests of the administration of justice". Mc Lcod v. St. Aubyn (1899 AC 549 at 561. This itself implies that there are two questions involved, (1) whether the offence has, in fact, been committed, and, (2) whether, even if it has, the court should exercise its jurisdiction to punish. We have shown in 1968 KLT 157 that Cotton, L. J., in Hunt v. Clarke 58 LJ Rep. QB 490 and Lord Russell, C. J. and Wright J. in The Queen v. Payne 1896 (1) QB 577 have expressly recognised that these two questions arise in cases of this nature and that they are distinct questions. We have shown in 1968 KLT 157 that Cotton, L. J., in Hunt v. Clarke 58 LJ Rep. QB 490 and Lord Russell, C. J. and Wright J. in The Queen v. Payne 1896 (1) QB 577 have expressly recognised that these two questions arise in cases of this nature and that they are distinct questions. But, it is often difficult to say whether a particular consideration falls under one question or the other, and the difficulty is not lessened by the circumstance that, since both questions are decided by the same authority, namely, the court, and generally at the same time, "namely, in pronouncing judgment, the two questions are generally not kept apart and are often dealt with together as if they constitute only one question. The result is that considerations that are really germane only to the second question are often treated as if they were defences to a charge of contempt in the nature of exceptions to the definition of the offence like the exceptions in S.499 of the Indian Penal Code. And some decisions, having regard to the factors relevant to the second question, go on to state that there is no contempt when what they really mean is that the contempt is not of such a nature as to call for the interference of the court. 9. Except to the extent that certain forms of contempt in the face of the court are described in S.175, 178, 179, 180 and 228 of the Indian Penal Code, there is no statutory definition of the offence of contempt of court although, of course, there is statutory recognition of such an offence in the Contempt of Courts Act, 1952. The contempt here alleged falls within the first of the three classes in Lord Hardwicke's famous classification, namely, scandalising the court itself, and probably the best judicial definition of this form of contempt is to be found in Reg. v. Gray 1900 (2) QB 36 where Lord Russel, C J. said: "Any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority is a contempt of court. v. Gray 1900 (2) QB 36 where Lord Russel, C J. said: "Any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority is a contempt of court. That is one class of contempt." And it has often been said that the best general definition of contempt of court is that given by Oswald at page 6 of the third edition of his book on the subject: "To speak generally, Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation." 10. Neither definition it will be noticed postulate any mens rea, any mental element such as intention, or knowledge, or even reason to believe, to accompany the act the word "calculated" is used in Lord Russell's definition in the same sense as "tend", in other words, as apt to have the result mentioned and not in the sense of there being a deliberate intention or design to achieve the result and it is generally said that the offence of contempt of court is one of absolute liability, the offence lying in the evil tendency of the act irrespective of whether or not there is subjective guilt. Regina v. Odhama Press Ltd. 1957 (1) QB 73 is clear authority for this statement. But, it seems to me that, so far as the law in this country is concerned, there can be no such thing as absolute liability, in a criminal offence, unless that is expressly, or by necessary implication, provided for by statute. Our Constitution and our laws have adopted in principle the doctrine of nulla poena sine lege, and all our criminal offences, with, so far as I know, the only exception of the offence of contempt of court, are statutorily defined. If any positive element of mens rea such as intention, knowledge, reason to believe, or negligence, is a necessary ingredient of the offence, that is stated in the definition. If any positive element of mens rea such as intention, knowledge, reason to believe, or negligence, is a necessary ingredient of the offence, that is stated in the definition. But, that no positive element of mens rea is mentioned in the definition does not mean that the liability is really absolute, for, what I might call the minimal mens rea implied by the absence of the negations of mens rea embodied in Chap.4 of the Indian Penal Code, namely, the general exceptions, must still be there unless the statute creating the offence otherwise provides. Only, by reason of S.105 of the Indian Evidence Act, the burden of proving the want of this minimal mens rea would be on the defence. Thus, the absence of specific reference to mens rea in the statute does no more than change the onus of proof. The prosecution has no positive element of mens rea to establish, and, what I have called the minimal mens rea, is assumed unless the accused can prove his innocence. The law of contempt of court is a special law within the meaning of S.41 of the Indian Penal Code. S.4 of the Contempt of Courts Act makes a contempt of court punishable with simple imprisonment which may extend to six months or with fine which may extend to Rs. 2000/- or with both, and, therefore, contempt of court is an offence within the meaning of Chap.4 of the Indian Penal Code see the second paragraph of the definition of, "offence" in S.40. Hence, the general exceptions in Chap.4 of the Indian Penal Code would apply to the offence of contempt of court and a defence such as, for example, mistake of fact under S.79 of the Indian Penal Code (which might perhaps cover innocent dissemination) would, I think, be open. 11. It is thus the evil tendency of the act, rather than the mental element by which it is accompanied, that makes it an offence. (The mental element would, however, be very relevant with regard to the second and third questions I have posed). 11. It is thus the evil tendency of the act, rather than the mental element by which it is accompanied, that makes it an offence. (The mental element would, however, be very relevant with regard to the second and third questions I have posed). In a celebrated passage in Ambard v. Attorney General for Trinidad and Tobago, 1936 AC 322 at 335 which has more than once been quoted with approval by our Supreme Court, Lord Atkin said: "But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men''. To my mind this does not mean that malice, or an intention to impair the administration of justice is an essential ingredient of the offence, or that the genuine exercise of the right of criticism and scrutiny in respectful even if outspoken terms, really constitutes an exception in the nature of the exceptions in S.499 of the Indian Penal Code. The fact of the matter, it seems to me, is that it is very rarely indeed that fair and reasonable criticism can have the evil tendency of bringing the authority and administration of the law into disrespect or disregard which is the gravamen of the offence. A reflection made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice is not contempt of court. For, it is not by stifling criticism that confidence in courts can be created. On the contrary, fair and legitimate criticism, in the long run, enhances rather than impairs such confidence, and its general tendency is to improve and not to interfere with the administration of justice. For, it is not by stifling criticism that confidence in courts can be created. On the contrary, fair and legitimate criticism, in the long run, enhances rather than impairs such confidence, and its general tendency is to improve and not to interfere with the administration of justice. It is the suppression of such constructive criticism that would amount to interference. And, even if on the face of it, a statement might have the effect of lowering the dignity of the court, a judicial pronouncement that it was no more than fair and legitimate though outspoken criticise or that it was not accompanied by malice or any other form of subjective guilt, a pronouncement which would, in the ordinary course, get greater publicity than the statement itself, would, in most cases, like the tender of an unqualified apology, purge the contempt of its evil consequences so that it would be unnecessary for the court to exercise its jurisdiction to punish. It seems to me that the immunity referred to by Lord Atkin attaches because, in the first place, fair and reasonable criticism in respectful terms can very rarely, if at all, have the evil tendency that is the essence of the offence, and, secondly, because even in these rare cases where such a tendency might be present, it would be so slight that the contempt would be only technical and therefore it would not be expedient in the interests of justice to exercise the jurisdiction to punish. Indeed, the decision in the case, that there was no contempt, proceeded on the finding that there was nothing to justify the view taken by the colonial court that the newspaper article in question was written with the object of bringing the administration of the criminal law in the colony by the judges into disrepute or disregard or that it could have that effect. In other words, the finding was that it did not have that tendency and the passage I have quoted only gives the reasons for that finding. 12. Lord Russell's definition of contempt of court in Reg. v. Gray 1900 (2) QB 36, which I have already quoted, occurs in the following passage: "Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Lord Russell's definition of contempt of court in Reg. v. Gray 1900 (2) QB 36, which I have already quoted, occurs in the following passage: "Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful profess of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke L C. characterised as scandalising a Court or a Judge'. (In re Read and Huggonson) - 1742 (2) Atk. 469). That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court." The qualification or exception in respect of fair and reasonable criticism it will be noted is in terms confined to the description of this class of contempt as "scandalaising a Court or a judge." Lord Russell does not extend the qualification to his own description and that I think is because, like Lord Atkin, he could not conceive of such criticism having the effect of bringing a court or a judge of the court into contempt or lowering his authority. But, once the evil tendency is established, there would appear to be no question of good faith or of pleas of justification or privilege see Ramakrishna Reddy v. State of Madras AIR 1952 SC 149 at 153 where there is the observation, "Even if good faith can be held to be a defence at all in a proceeding for contempt" and Brahma Prakash v. State of U.P. AIR 1954 SC 10 at 14 where it is said "It may be that pleas of justification or privilege are not strictly speaking available to the defendant in contempt proceedings." 13. The tendency must, however, be real and direct, more than a mere theoretical possibility that the evil consequences might ensue. We must look, at the realities of things. The tendency must, however, be real and direct, more than a mere theoretical possibility that the evil consequences might ensue. We must look, at the realities of things. As some decisions put it, the tendency must amount to a live threat of obstruction to, or interference with the course of justice. But, what is meant by obstruction to, or interference with, the course of justice in the context of the particular form of contempt we are now considering, namely, scandalising the court, is clear from the following passage in Ramakrishna Reddy v. State of Madras AIR 1952 SC 149 at 153. "When the act of defaming a Judge is calculated to obstruct or interfere with the due course of justice or proper administration of law it would certainly amount to contempt. The offence of contempt is really a wrong done to the public by weakening the authority and influence of Courts of law which exist for their good. As was said by Willmot C. J., Willmot's Opinions p. 256; Rex v. Davies, 3 at p. 40-41 'attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determinations ... and whenever man's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals but because they are the channels by which the King's Justice is conveyed to the people." It is, however, unnecessary to demonstrate that there has been actual interference with the administration of justice, for example, by showing, as was suggested, that the offending statement has persuaded people to take their disputes to the streets rather than to the courts. The question is not so much whether the statement, in fact, interferes as whether it tends to interfere with the due course of justice. For as Mahajan J. said in Brahma Prakash v. State of U.P., All. The question is not so much whether the statement, in fact, interferes as whether it tends to interfere with the due course of justice. For as Mahajan J. said in Brahma Prakash v. State of U.P., All. 1954 SC 10 at 14 a case of scandalising the court, it is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law. 14. Courts have always insisted on close proximity both in point of time and in causation between the act and the evil apprehended. There must be such a degree of probability and of imminence as to constitute a real and present danger to borrow the language of the American test, first formulated with reference to the offence of sedition but later extended to the offence of contempt of court which, after all, is logically and, perhaps, also historically, only a particular form of sedition that the apprehended evil will result although of course, we need not go to the extremes to which the American decisions seem to have gone, not without powerful dissent, as to what amounts to a real and present danger. The offence lying not so much in the actual evil caused, or in a guilty mind directed towards that end, as in the apprehension that the evil might ensue, if a remote tendency, remote in point of time or of causation, were sufficient, then to make an offence of the act might be an unwarranted interference with the fundamental right of freedom of speech. 15. The tendency of a statement does not depend solely on its contents see Brahma Prakash v. State of U.P. AIR 1954 SC 10 Para.19. Much depends on the circumstances in which it is made, its context, the person making it and the capacity in which he makes it, the persons to whom it is addressed, the nature and degree of publicity it receives and other like factors. Nor will the court lose sight of prevailing local conditions. (Mc Leod v. Sr. Abuyn 1899 AC 549 at Ambard v. Attorney General for Trinidad and Tobago 1936 AC 322. Nor will the court lose sight of prevailing local conditions. (Mc Leod v. Sr. Abuyn 1899 AC 549 at Ambard v. Attorney General for Trinidad and Tobago 1936 AC 322. A parallel might usefully be drawn from the law regarding obscenity, another offence which depends on the tendency more than on the actual consequences of the act complained of. What might not be obscene in a treatise on sex, or in a medical text book, or in a work of art, can be obscene if published in a newspaper or displayed on the stage or screen. The tendency to deprave and corrupt which is the gravamen of the offence might not be present in the case of the former while it might be present in the case of the latter. Likewise there can be a lot of difference between the tendency of a statement made in a treatise on politics or economics or of a statement addressed to academic or professional circles and, as in the present case, of a press statement issued by the Chief Minister of a State, in his capacity as such, for the consumption of the general public. 16. Lord Russell's definition speaks of bringing a court or a judge of the court into contempt, Lord Hardwicke's of scandalising the court itself. They had in mind a court punishing a contempt of itself, but it is not to be thought that a libel on all the courts of the land or on the court as an institution is not contempt of every one of them if its effect is to bring all of them into contempt. Lord Russell himself speaks of obstruction to or interference with the due course of justice although with reference to another class of contempt, while, in dealing with the class of contempt we are now considering, Oswald only speaks of bringing the authority and the administration of the law (not a court or the court) into disrespect or disregard. I am referring to this because it has been strenuously argued on behalf of the respondent that it is only an aspersion cast on a particular judge or a particular court, and not one cast on all the judges and on all courts of the land, that can amount to contempt. I am referring to this because it has been strenuously argued on behalf of the respondent that it is only an aspersion cast on a particular judge or a particular court, and not one cast on all the judges and on all courts of the land, that can amount to contempt. The reason why scandalising the court is regarded as an offence is that it tends to impair that faith and confidence in the proper and impartial adjudication by the courts as between man and man and man and the State, which is a sine qua non of all civilized and orderly government. As Blackstone put it, the essence of this kind of contempt lies in "the tendency to demonstrate a gross, want of that regard and respect which when once Courts of Justice are deprived of, their authority so necessary for the good order of the kingdom is entirely lost among the people." And if a statement really has such an effect, it would be a strange law that would punish it if it were a libel on a particular judge or a particular court, but not if it were a libel on all the judges and all the courts of the land. 17. As I understand it, the true position is that a general statement directed against all courts can rarely have the evil tendency which is the raison d'etre of the law creating the offence. If it is a temperate statement, amounting to no more than fair and reasonable criticism of the administration of justice, its tendency, as we have seen, would be not to interfere with, but to improve, the administration of justice. If, on the other hand, it is an intemperate statement such as, for example, that all the judges of the land are bribe takers, it carries within itself its own condemnation. No one would attach the least importance to such a statement. It would be dismissed as the ravings of a crank, and it would have no mischievous tendency. 18. Great reliance is placed on behalf of the respondent on the unreported decision of the Supreme Court in Appeal No. 110 of 1960 and on Government Pleader, High Court, Bombay v. Tulsidas Subhanrao ILR 1938 Bombay 179. It would be dismissed as the ravings of a crank, and it would have no mischievous tendency. 18. Great reliance is placed on behalf of the respondent on the unreported decision of the Supreme Court in Appeal No. 110 of 1960 and on Government Pleader, High Court, Bombay v. Tulsidas Subhanrao ILR 1938 Bombay 179. The former was a case where the accused, who was an advocate and also the secretary of the Indian Council of Public Affairs, had written an article in a newspaper repeating the charges levelled by the Law Commission with regard to the making of appointments to the highest courts in the land and disapproving of the denial of those charges by the Law Minister & Home Minister of the Central Government. In the course of that article, the accused had said, "Suffice it to say that some lawyers who did not make any mark in their profession nor had any visible practice have found their way to the bench." This, the Patna High Court thought, was derogatory of its dignity and it convicted the accused of contempt. The Supreme Court on appeal thought otherwise and it acquitted the accused. In the course of the judgment their Lordships made the following observations: "In this connection it should be remembered that the appellant, at the relevant time, was the Secretary of the Indian Council of Public Affairs He had thus a dual capacity. He was not only a practising advocate of the Court but was also a public man conducting the affairs of a public body, which functions publicly and claims to serve public interests. On the very face of it, the statement was made by the appellant in his public capacity and not with reference to any particular Court. xxx xxx xxx The appellant, as a citizen of India and as the Secretary of a public body, had the right to ventilate his opinion publicly in respect of matters deserving public attention, so long as he did not bring himself within the reach of the law of contempt of court, of defamation, or so long as it did not amount to incitement to an offence. xxx xxx xxx In our opinion, that sentence has to be read in the context of the whole statement and of the remarks of the Law Commission, and the reaction of some members of the Central Government to those remarks. xxx xxx xxx In our opinion, that sentence has to be read in the context of the whole statement and of the remarks of the Law Commission, and the reaction of some members of the Central Government to those remarks. xxx xxx xxx The statement read as a whole amounts to saying that the Government had not discharged their responsibilities fully and properly in the matter of appointments of High Court Judges. That opinion may be well founded' or may be ill founded. That is not the question before us. The only question that we have to determine, is whether that sentence read in the context of what has been said above can be said to bring the Patna High Court, or for the matter of that, any particular High Court into contempt. In our opinion, the High Court is in error in coming to the conclusion that it had that effect. Judges who have the responsibility of functioning independently and fearlessly have also to be very vigilant about the reputation of the Court. But that does not mean that any sidewind of a public statement which may have some remote effect on the susceptibilities of some Judges is necessarily a contempt of Court. xxx xxx xxx The appellant made the statement in question on a burning topic of the day, soon after the publication of the Law Commission Report, which contained references to irregularities or improprieties in making appointments to the highest Courts in the land, xxx xxx xxx He emphasized, what very intelligent citizen has a right to do, that those charged with the solemn duty of making appointments to the highest Courts in the land should not be deflected in the discharge of their functions by any extraneous considerations, and that appointments should be made entirely on merits. In a free country where the free expression of one's honest opinion is a cherished right, enshrined in our Constitution, Judges should not be oversensitive in respect of remarks directed against them, as a body, so long as those remarks are within proper limits of public criticism of a question on which there may be differences of opinion." I am unable to extract from this, the proposition advanced on behalf of the respondent that no statement made by a person in his public capacity about courts as a whole and without reference to any particular court can amount to contempt of court whatever be the contents of the statement and whatever be the circumstances in which it was made. What their Lordships did was to set out in full the context in which the statement was made and the surrounding circumstances, and to hold that, in that context, and in those circumstances, the statement did not have the mischievous tendency of bringing the Patna High Court or any other High Court into contempt. 19. In Government Pleader, High Court, Bombay v. Thulsidas Subhanrao ILR 1938 Bombay 179 (a decision which proceeded at least in part on the acceptance of an unconditional apology and may therefore be regarded as semi obiter, if I might use such an expression) Beaumont, C. J. said: "In my judgment the process (namely the process of contempt of court for scandalising the court) should be used in this country where attacks are made on the personal character of a judge, or where base an improper motives in the decision of a case are attributed to a Judge. In the present case the speech which is the subject matter of the charge does undoubtedly contain matter which shows that the speaker entertains in the popular sense of the word contempt for all Courts of Justice. Possibly on the context it might be said that the Courts of Justice to which he is referring are the courts of this Presidency and that the speech should be so limited. Possibly on the context it might be said that the Courts of Justice to which he is referring are the courts of this Presidency and that the speech should be so limited. But even if the speaker is expressing contempt for all Courts of Justice in this Presidency, he is not making any attack on any particular Judge or comment on any particular case, and in my opinion, a general expression of opinion hostile to the utility of Courts of Justice is not likely to affect the public, and need not disturb the equanimity of judges. In my opinion the speech does not amount to such a contempt of court as should be dealt, with by the process of contempt. I would add that the respondent has offered an unconditional apology for any expressions in his speech which do show contempt for the Courts, and, in my judgment, therefore, the rule should be discharged." The decision expressly proceeds on the assumption that, in the conditions then prevailing, a general expression of opinion hostile to the utility of courts of justice made by a comparative non entity is likely to be ignored by the public and is therefore not likely to have the mischievous tendency which is the gravamen of the offence of contempt of court. It further held that the particular speech there considered did not amount to such a contempt as to call for the exercise of the jurisdiction to punish in the public interest, especially when the respondent had offered an unconditional apology. I do not think that this means that a general statement can in no circumstances amount to contempt of court. As I have already pointed out, ordinarily it is only an attack on a particular judge or judges that affects the public mind; a general attack is likely to be ignored as unworthy of credence; and the decision says no more than that. 20. So much for the content of the offence. As I have already pointed out, ordinarily it is only an attack on a particular judge or judges that affects the public mind; a general attack is likely to be ignored as unworthy of credence; and the decision says no more than that. 20. So much for the content of the offence. Now, turning to the second question, the reasons traditionally given for the restraint the courts have imposed on themselves on the exercise of their jurisdiction to punish for contempt, reasons related not so much to the substance of the law as to the procedure (what has often been called the summary and arbitrary process) by which it is enforced, no longer obtain so far as this country is concerned at any rate not with the same force as before. There is now a limit on punishment, placed by S.4 of the Contempt of Courts Act, and there is an appeal provided by Art.134 and 136 of the Constitution albeit only on certificate or by special leave which, I suppose, will the more readily be granted, where there is the least possibility of injustice, for there being no appeal in the ordinary course. We have never had the alternative of criminal information, and the procedure ordinarily followed by our courts, and, in the case of some High Courts enjoined by rules of court, conform strictly to the rules of natural justice and compares favourably with the procedure prescribed by the Criminal Procedure Code for the trial of offences of like gravity, namely, the procedure set out in Chap.20 of the Code. (Having regard to the limit of punishment, contempt of court would rank only as a summons case under the Criminal Procedure Code, and, although in comparison with the procedure prescribed in Chap.23 of the Code for trial by High Courts, it may be said that the procedure followed for the trial of contempt of court is summary, that procedure affords the accused as much opportunity far his defence as he would have in a summons case tried by a magistrate). And, although it might in some measure be true that in contempts of the present nature the court is in effect the victim, the prosecutor, and the judge, the reports disclose that the awareness of this on the part of the courts, more often than not tends to favour the accused than" otherwise. 21. And, although it might in some measure be true that in contempts of the present nature the court is in effect the victim, the prosecutor, and the judge, the reports disclose that the awareness of this on the part of the courts, more often than not tends to favour the accused than" otherwise. 21. As I have already pointed out, the absence of mens rea or a finding by the court that the accused did not go far beyond the limits of fair and reasonable criticism, or the tendering of an unconditional apology by the accused, are considerations which would weigh with the court in deciding whether it should exercise its jurisdiction to punish the last mentioned is a consideration recognised by statute, see the first proviso to S.4 of the Contempt of Courts Act. Because, as I have already said, the offence depends more on the likely than on the actual consequences of the act or the mental element by which it is accompanied., courts insist that, before they can be asked to exercise the jurisdiction to punish, it must be shown that the apprehended obstruction to the course of justice is of a substantial character. A contempt which is not substantial and is therefore called technical, will not be punished. In the words of Lord Russell C J. in The Queen v. Payne 1896 (1) QB 577: "No doubt the power which the Court possesses in such cases is a salutary power, and it ought to be exercise in cases where there is real contempt, but only where there are serious grounds for its exercise." Or, as Mahajan J. said in Aswini Kumar v. Arabinda Bose, AIR 1953 SC 75 at 76, the power to punish should be used only in very grave and serious cases. 22. Generally speaking, it might be said that, since public interest and not the susceptibilities of the judges is the touchstone, the power to punish for contempt will not be exercised except out of public necessity, and, in arriving at a decision as to whether there is such necessity, countervailing public interests; demanding free discussion, even as against the public interest of upholding the dignity of the courts, will have to be considered. 23. 23. With regard to the contention that, because the offence of contempt of court is not statutorily defined, the law of contempt of court, including the Contempt of Courts Act, is bad for offending Art.19(1)(a) of the Constitution in that the restriction it imposes on freedom of speech is not a reasonable restriction and is therefore not saved by Art.19(2), there is little I can usefully add to what has been said in 1968 KLT 157 and in the decisions referred to therein. Driven to its logical conclusion, the argument would mean that much of our law relating to civil wrongs would be bad for offending one or the other of the fundamental rights embodied in Art.19(1) in that, not being statutorily defined, the restrictions they impose would not be reasonable restrictions within the meaning of the saving clauses of the article. No doubt, a criminal offence stands on a different footing, for as we have seen, our Constitution and our laws have in substance, adopted the principle of nulla poena sine lege. But then our Constitution makers could not have been unaware of the fact that there was no statutory definition of the offence of contempt of court. Yet, it is clear that they did not think that that circumstance would make the existing law relating to contempt of court a bad law. For, by Art.19(2) they expressly set out to save the operation of the existing law in relation to contempt of court in so far as the restrictions imposed thereby on the right of freedom of speech were reasonable; and they expressly declared, by Art.129 and 215, that the Supreme Court and "every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself". Obviously, they did not think that the absence of a statutory definition of the offence of contempt would, by itself, make the law of contempt an unreasonable restriction on the exercise of the fundamental right of freedom of speech. And they did think that there was an existing law of contempt which was a valid law. 24. Obviously, they did not think that the absence of a statutory definition of the offence of contempt would, by itself, make the law of contempt an unreasonable restriction on the exercise of the fundamental right of freedom of speech. And they did think that there was an existing law of contempt which was a valid law. 24. A law which, after fair trial, punishes, out of public necessity, the great public mischief of obstructing the course of justice, certainly cannot be regarded as an unreasonable restriction on the right of freedom of speech either with regard to its substance or with regard to the procedure by which it is enforced. 25. Some mention was made of Art.14 of the Constitution but that line was not pursued at least so I thought although it was, as it were in passing, remarked that the law of contempt of court invests the Supreme Court and the High Courts with the unbridled power of making a criminal offence of whatever they chose. But much of our law is what is commonly called judge made law - theoretically it may be more accurate to describe it as judge declared law. In declaring the law, courts are guided by well established rules and precedents and there are checks and safeguards against error, and I should have thought that, by its very nature, the judicial process is the antithesis of, and, indeed, the very safeguard against, arbitrariness. And to the extent that the law involves the court being a judge in its own cause, Art.129 and 215 of the Constitution, it seems to me, expressly authorise that. 26. The contention that the law of contempt of court offends Art.19(1)(a) of the Constitution and is not saved by Art.19(2) was considered and repelled in State v. Brahma Prakash, AIR 1950 Allahabad 556 (F. B.), State v. E. & P. E. T. & P. AIR 1952 Orissa 318, Legal Remembrancer v. Bibhuti Bhusan, AIR 1954 Patna 203, State of Bombay v. "Mr. P." AIR 1959 Bombay 182 and Advocate General, A. P v. Ramana Rao, AIR 1967 AP. P." AIR 1959 Bombay 182 and Advocate General, A. P v. Ramana Rao, AIR 1967 AP. 299 , to name only a few of the decisions brought to our notice, No decision to the contrary has been brought to our notice, and, at least seven of the decisions of the Supreme Court cited before us, proceed on the basis that the law of contempt as understood by the courts in this country is a valid law before the Supreme Court no attempt was made to urge the contrary, obviously because the position as laid down by the several High Courts was accepted. 27. Coming now to the statement admittedly made by the respondent, and of which the summary, Ext. P1, is admittedly substantially correct, and, though incomplete in some respects, conveys the idea which the respondent wanted to give expression to, it seems to me to fall little short of saying that the courts of this land, including this court and its subordinate courts, cannot be trusted to do justice between the poor and rich, and that the judges favour the rich against the poor, the exploiting classes against the workers, peasants and other sections of the working classes. That is the impression I got when I first read the statement (or rather its summary as published in the "Indian Express" of the 10th November) and that is the impression that remains after I have read the statement (and have heard it read out) a number of times in the light of what has been said about it by both sides. It must be remembered that the statement was made at a press conference convened by the respondent in his capacity as Chief Minister. It was intended to reach the public through the newspapers in as wide a measure as possible, and, according to the respondent himself, it was made for the purpose of educating public opinion. 28. "Marx and Engels considered the judiciary as an instrument of oppression and even today when the State setup has not undergone any change it continues to be so". So the statement begins. 28. "Marx and Engels considered the judiciary as an instrument of oppression and even today when the State setup has not undergone any change it continues to be so". So the statement begins. The statement was addressed to the people of this country for the purpose of educating public opinion in this country and there can be no doubt that the State setup mentioned has particular reference to the setup of this country, not to the setup of other countries, certainly not of countries which have adopted the respondent's particular ideology. What this part of the statement means is clearly that, here and now, the judiciary of this country is an instrument of oppression. Had no more been said, the statement might, perhaps, have been capable of the construction that the judiciary being but an instrument of the law it becomes an instrument of oppression when the laws are, as in the present State setup, oppressive. But then follows the statement that "judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot bellied rich man and a poor ill dressed and illiterate person the judge instinctively favours the former." Surely this means that, in administering the law, whether oppressive or not, in other words, in deciding cases, the judges of this country are guided and dominated by class hatred, class interests and class prejudices, one of the results being that where the evidence is balanced the judge instinctively favours the rich against the poor. (I read the words, "where the evidence is balanced" to mean, "where the evidence is evenly balanced", not as meaning, what would certainly be more objectionable, "in weighing the evidence"). What does this mean in the light of the rest of the statement excepting that, in such cases, the judge instead of deciding in accordance with the onus of proof, as the law requires him to do, decides in favour of the rich man. It is not merely that a judge believes a rich witness as against a poor witness. It is that, being guided and dominated by class hatred, class interests and class prejudices, judges, in deciding cases, favour the rich man against the poor man, the exploiting classes, to which they belong, as against the workers, peasants and other sections of the working classes. It is that, being guided and dominated by class hatred, class interests and class prejudices, judges, in deciding cases, favour the rich man against the poor man, the exploiting classes, to which they belong, as against the workers, peasants and other sections of the working classes. It means that the judges throughout the country are betraying the trust reposed in them by the people who, by the Constitution, have enjoined on them the solemn duty of adjudicating between man and man, and man and the State, without fear or favour, affection or ill will. To say that they do so instinctively is only to add to the sting I should think that to say that a man is instinctively dishonest is worse than saying that he is dishonest. 29. What the respondent has said is, of course, not true. It is not fair and reasonable criticism, even if that be a defence, once the evil tendency of the statement is established. It is a calumny calculated -- calculated not merely in the sense that it tends to, but also, since on the respondent's own showing the statement was a statement deliberately made with the object of educating public opinion, calculated in the sense that it was intended to -- to undermine the confidence of the public in the courts of the land than which, since the proper administration of justice depends so much on such confidence, no greater public mischief can be imagined. No one would deny that in the battles of life, in the courts as in other arenas, the poor and the otherwise handicapped are at a disadvantage and that the laws of life operate unequally as between these and other classes that mournful truth has been long and universally confessed. No one would claim that we are a classless society or have achieved our goal of complete social justice (or indeed any other kind of justice), things which seem to be beyond the pale of human achievement, (It is said that the preamble to our Constitution imposes on every responsible citizen the moral duty of securing to all citizens "JUSTICE, social, economic and political" and that all that the respondent has done is to take this more seriously than the rest. But, surely, the Constitution does not authorise the adoption of unlawful means to achieve this end, and I am afraid that a modern Robin Hood would find little legal comfort in the preamble to the Constitution). No one would deny that what I might call the legal philosophy of a judge which, in certain regions, must necessarily influence his decisions, is coloured by his own experience and by his own social, economic, educational and cultural background. (Even so, it is not, as a rule, sufficiently emphasized that the conscious attempt made by every conscientious judge to avoid what eminent judges halve called unconscious bias often overreaches itself and falls on the other side. Nor is it right to suggest that this unconscious bias is necessarily in favour of the particular class to which the judge belongs or from which he has derived advantage. Judges with large personal fortunes are by no means among the most zealous upholders of rights to property; nor are judges who have made their fortune by espousing, in their career at the bar, the causes of the propertied and employing classes, what the respondent would call the exploiting classes, among the least sympathetic to the poor and the working classes, what the respondent would call the exploited classes. An acquitting judge to succumb to a popular notion which is not altogether a fallacy is no more a person with criminal tendencies than a convicting judge is an angel, and it is notorious that judges who have made their fortunes by defending criminals while at the bar belong to the former rather than to the latter class). But, that is not to say that a judge so identifies himself with the interests of the class to which he belongs or from which he has profited, that he allows himself to be so overborne by class hatred and class prejudice as to decide judicially in favour of that class and thus become an instrument of oppression of the other classes. To say the latter, I have no doubt, is to say something false and wicked, at any rate so far as the judges of this country are concerned. 30. To say the latter, I have no doubt, is to say something false and wicked, at any rate so far as the judges of this country are concerned. 30. We have been taken through innumerable passages in the speeches and writings of great thinkers of every age and clime, poets, philosophers, men of letters, historians, economists, political theorists, politicians, publicists, statesmen and jurists, and it is claimed that the respondent has said no more than what these persons have said. The object, counsel for the respondent has been at some pains to protest, is not to show that these persons said what they said with impunity he recognises that that can confer no immunity on the respondent if, indeed, the latter's statement amounts to contempt but to show that the opinions expressed by the respondent are opinions so widely held and widely expounded over the ages as to have become part of the everyday philosophy of the common man. Therefore, a repetition of those opinions cannot have the effect of bringing the administration of justice into contempt or of lowering the authority of the law; and, therefore, cannot constitute contempt of court. 31. I do not think it necessary to refer to any of the passages, for, in my view, none of them can bear comparison with the statement made by the respondent, either in content or in respect of the circumstances in which it was made. For the best part, they are but variations of the theme that life is an unequal battle between the rich and the poor, the strong and the weak, the educated and the ignorant, the wise and the foolish, in short, between the fortunate and the unfortunate, in particular, of Johnson's dictum, "Slow rises worth by poverty depressed" and of Anatole France's observation that "the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the street and to steal bread." For the rest, they are admissions made by eminent judges (with the exaggeration inherent in the confessional), subjecting themselves to a searching self examination in analysing the judicial process for the benefit of professional and academic audiences, that what they call an unconscious bias on the part of the judges cannot altogether be excluded. Or warnings by statesmen or heads of Government that, in the discharge of their functions under a Constitution such as ours which enjoins on them the duty of not merely declaring what the law as made by the Legislature is, but also what it ought, or, rather, ought not to be, courts ought not to arrogate to themselves the powers of the legislature and set themselves up as a third chamber or a super legislature. What resemblance do these statements bear in their tendency to impair the trust and the confidence that the public repose in the administration of justice, to a statement issued to the press for general publication by a person who is the leader of a political party, which, judging by the results of the elections, has the largest following in this State and, what is more, is the head of the executive Government, to the effect that, in deciding cases, the judges of this country are partial to the rich and to the exploiting classes, with the result that the judiciary is an instrument of oppression against the poor and the exploited classes? 32. The respondent has no case that his statement is not likely to make any impression on the public mind, that the general public will largely ignore it as mere political propaganda or a mere theoretical exposition of his particular ideology. On the other hand, his case, as clearly disclosed by his counter affidavit, is that the statement was a statement deliberately made for the purpose of educating public opinion so that the public may accept it and act upon it. That the respondent's real object, or what might be called his dominant intention, was not so much to defame the judiciary as to grasp this sorry scheme of things entire, and, after shattering it to bits, remould it nearer to his heart's desire, can make no difference whatsoever to the effect his statement would have on the public mind in relation to the courts. Having regard to the position occupied by the respondent and the circumstances in which the statement was made, can there be the least doubt that there is the very real and immediate danger of a considerable section of the public accepting the statement, and acting upon it, coming to the conclusion that the decisions of the judges of this land, who are so overborne by class hatred and class prejudice that a poor man cannot get justice at their hands, are not entitled to any respect. That the statement is only an exposition of a particular aspect of the respondent's political ideology and that it is only a part, and a small part, of a scheme to make revolutionary changes in what has been called the entire setup of the State, if possible, by peaceful means, but, if necessary by violence, is, I repeat, of no relevance in so far as the charge of contempt of court is concerned the only question we have to consider is whether it is calculated to bring the administration of justice into disrepute. To the argument that all worthwhile reforms have been brought by iconoclasts and that the law breaker of today might be hailed by future generations as a prophet whose vision transcended the narrowness and the bigotry of the laws of his times, the only answer I can give, as one pledged to administer the law as I find it and not as I, or anybody else, would have it, is that, if that be so, the price must presently be paid. 33. When Lord Morris said in Mc Leod v. St. 33. When Lord Morris said in Mc Leod v. St. Aubyn 1899 AC 549 at 561 that committals for contempt of court by scandalising the court itself had become obsolete in England and went on to add, in terms that have come in, for animadversion at the bar, that, in small colonies, consisting principally of coloured populations, such committals by courts might, in proper cases, be absolutely necessary to preserve in such a community the dignity of and respect for the court, what His Lordship meant was that, although in England, where respect for the courts and for the law is so firmly entrenched that attacks on the courts would largely be ignored as irresponsible statements and would leave little impression on the public mind, the position might be different in other countries with less advanced populations where the dignity of and respect for the courts is not so firmly established. In other words, because of differing conditions, what might have the evil tendency which is the gravamen of the offence of contempt in one country or at one time, need not necessarily have that tendency in another country or at another time. But, as pointed out by Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago 1836 AC 322 at 335 and in Debi Prasad v. Emperor AIR 1943 PC 202 , this observation of Lord Morris regarding England was sadly disproved the very next year by the case of Reg v. Gray, 1900 (2) QB 36. That the contempt of scandalising the court is very much extant in this country is amply borne out by the decisions in Debi Prasad v. Emperor, AIR 1943 PC 202 , Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 , Aswini Kumar v. Arabinda Bose AIR 1953 SC 75 and Brahma Prakash v. State of U.P. AIR 1954 SC 10 , not to mention some of the more recent decisions of the Supreme Court. And, having regard to all the circumstances, I do not think that the statement made by the respondent will be so ignored as to leave little impression on the public mind. 34. I should have thought that all the law necessary for the disposal of this case could be found in the three decisions of the Supreme Court just referred to. 34. I should have thought that all the law necessary for the disposal of this case could be found in the three decisions of the Supreme Court just referred to. Therefore, at the risk of repetition, I shall consider them at some little length. In Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 the publication of a statement in what might well be described as a petty provincial weekly to the effect that the local Sub Magistrate was corrupt, was held to be contempt well deserving of the sentence of three months' simple imprisonment imposed on the contemner by the High Court. The contemnor's plea was that he had received numerous complaints imputing corruption and disreputable conduct to the magistrate and that his only object in making the publication was to draw the attention of the higher authorities to the state of public opinion in the matter and to invite an inquiry into the truth or otherwise of the allegations which, he said, were not asserted as facts but as based only on hearsay. He was not prepared to substantiate the allegations he had published and which he admitted were based on hearsay, and he did not think it proper even to express regret for what he had done the respondent in the present case has not made the least attempt to substantiate his allegation of partiality on the part of the judges of this country, and he has not thought it proper to express any regret for what he has done. Mukherjea J. (as he then was) speaking for the court said: ' When the act of defaming a Judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. The offence of contempt is really a wrong done to the public by weakening the authority and influence of Courts of law which exist for their good." He then went on to observe: "The article in question is a scurrilous attack on the integrity and honesty of a judicial officer, xxx If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute x x x x As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide even if good faith can be held to be a defence at all in a proceeding for contempt." 35. In Aswini Kumar v. Arabinda Bose AIR 1953 SC 75 a leading article in the "Times of India" to the effect that the Supreme Court had strained the law in a decision it had rendered, with the object of doing away with the dual system obtaining in the Calcutta and Bombay High Courts, and that courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment which is the glory of the law and the guarantee of justice was held to be contempt of court although further proceedings were dropped on the contemnors tendering an unconditional apology to which they agreed to give wide publicity. Mahajan J. who delivered the judgment of the court said in this connection: "No objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the judges, it not only transgressed the limits of fair and 'bona fide' criticism but had a clear tendency to affect the dignity and prestige of this Court. The article in question was thus a gross contempt of Court. It is obvious that if an impression is created in the minds of the public that the Judges in the highest court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined. 36. In Brahma Prakash v. State of U.P. AIR 1954 SC 10 (which was a case of acquittal) Mukherjea J. speaking for the court observed that the test was whether the allegations are of such a character or are made in such circumstances as would tend to obstruct or interfere with the course of justice or the due administration of law. In Brahma Prakash v. State of U.P. AIR 1954 SC 10 (which was a case of acquittal) Mukherjea J. speaking for the court observed that the test was whether the allegations are of such a character or are made in such circumstances as would tend to obstruct or interfere with the course of justice or the due administration of law. Then, after saying that a reflection on the conduct or character of a judge with reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice, and that care should be taken to distinguish between what is a libel on the Judge and what amounts really to contempt of court, he went on to observe: "The position therefore is that a defamatory attack on a Judge may be a libel so far as the Judge is concerned and it would he open to him to proceed against the libellor in a proper action if be so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt. One is a wrong done to the Judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court's administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of s`uch defamatory statement; it is enough if it is likely or tends in any way, to interfere with the proper administration of law." Well might one ask, is the statement we are now considering (a statement made to the press by the Chief Minister of the State with the avowed object of educating the public mind) to the effect that all the courts of this country, from the lowest to the highest, favour the rich against the poor, less calculated to undermine the confidence of the public in the courts, and thus to interfere with the due course of justice and the proper administration of the law, than a statement in a newspaper to the effect that a particular Sub Magistrate is corrupt or that, in a particular case, the Supreme Court strained the law out of extraneous considerations? 37. I hold the respondent guilty of very grave contempt of this court and of the courts subordinate to this court. The mischief that his statement is likely to work in undermining the confidence of the public in the courts is substantial and I can think of no countervailing public interest or of any other reason why we should not exercise our jurisdiction to punish for contempt. The respondent has expressed no regret. On the contrary he has not merely attempted to justify his conduct but has also expressed his determination to persist in it in prosecution of what he considers to be his mission in life the opinion he has expressed regarding the judiciary, he has made it clear, is part of his ideology, and in Para.17 of his counter affidavit he has said that he will continue to uphold and broadcast that ideology so long as he has the power to do so, whatever be the cost to his personal well being. 38. 38. So far as the sentence is concerned, left to myself I should have thought that, having regard to the gravity of the offence (which is certainly not extenuated by the circumstance that the respondent occupies a public position of great trust and responsibility) and the attitude the respondent has chosen to adopt, the sentence should not be less severe than the sentence affirmed by the Supreme Court in Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 , namely, simple imprisonment for three months. But, since one of my learned brethren is of the view that the respondent is not guilty, and the other is of the view that the proper sentence would be a fine of Rs. 1000/-, I agree to the sentence proposed by the latter. Mathew J: (Dissenting) I regret my inability to agree with my learned brethren. 2. This is an application to take proceedings in contempt against the respondent in respect of a statement made by him at a press conference on 9-11-1967. 'The statement was published in the "Indian Express" dated 10-11-1967. A gist of the statement appeared in "Mathrubhoomi" of even date. 3. The petitioner is an Advocate and a member of the Bar Council of Kerala. He states that the application was moved in pursuance of a resolution dated 19-11-1967 passed by the Bar Council. 4. Although the memorandum of charges Served on the respondent relies only on certain passages in the statement as particularly offensive, I would set out the statement as published in the "Indian Express" to give a complete picture. "Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set up has not undergone any change it continues to be so". Mr. Nambudiripad told a news conference this morning. He further said that Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot bellied rich man and a poor, ill dressed and illiterate person the judge instinctively favours the former the Chief Minister alleged. The Chief Minister said that election of Judges would be a better arrangement, but unless the basic State setup is changed, it could not solve the problem. Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the constitutional provisions are practised. The Chief Minister said that election of Judges would be a better arrangement, but unless the basic State setup is changed, it could not solve the problem. Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the constitutional provisions are practised. 'I have not taken any oath" the Chief Minister said 'that every word and every clause in the Constitution is sacred'. Before that he had also taken an oath, Mr. Nambudiripad said, holding aloft a copy of the Marxist Party Programme and read out extracts from it to say that the party had always held that nothing much could be done under the limitations of the Constitution. Raising this subject of Constitution and judiciary suo motu at the fag end of his news conference the Chief Minister said so many reports have appeared in the press that Marxists like himself, Mr. A. K. Gopalan, and Mr. Imbichi Bava (Transport Minister) were making statements critical of the judiciary "presumably with the idea that anything spoken about the court is contempt of court." His party had always taken the view, the Chief Minister said that judiciary is part of the class rule of the ruling classes. And there are limits to the sanctity of the judiciary. The judiciary is weighted against workers, peasants and other sections of the working classes and the laws and the system of judiciary essentially serve the exploiting classes. Even when the judiciary is separated from the executive it is still subject to the influence and pressure of the executive, To say this is not wrong. The judiciary, he argued, was only an institution like the President or Parliament or the Public Service Commission. Even the President is subject to impeachment. After all, sovereignty rested not with any one of them but with the people. Even with regard to judges confidential records are being kept. Why? The Judge, is subject to his own idiosyncrasies and prejudices. 'We hold the view that they are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred, and class prejudices. In these conditions we have not pledged ourselves not to criticise the judiciary or even individual judgments'. This did not mean, he explained, that they could challenge the integrity of the individual judge or cast reflections on individual judgments, the Chief Minister contended. In these conditions we have not pledged ourselves not to criticise the judiciary or even individual judgments'. This did not mean, he explained, that they could challenge the integrity of the individual judge or cast reflections on individual judgments, the Chief Minister contended. He did not subscribe to the view that it was an aspersion on integrity when he said that judges are guided and dominated by class hatred and class prejudices. 'The High Court and the Supreme Court can haul me up, if they want' he said." The petitioner says that the statement is calculated to bring courts and judges into contempt and lower their authority, that it tends to impair the confidence of the public in the administration of justice, and that it comes within the category of contempt which Lord Hardwicke L. C., characterised as 'scandalising a court or a judge,' 5. In an affidavit filed by the respondent, he has stated that the statement has no tendency to impair the administration of justice, that he has only made a critical evaluation of the system of administration of justice as it obtains today in this country with a view to reform it so that it may conform to the cherished desire of the people as embodied in the Constitution, that he believes it to be his duty as a citizen and as a member of his party to educate the public about defects of the system, and that the statement is only a reiteration of some of the ideas contained in the official programme of the Communist Party (Marxist) as embodied in Ext. R1.) He submits that the programme was before the public for over three years, that several candidates who believe in implementing the programme stood for election and won seats both in the legislatures of the States and in Parliament, that the ideas embodied in the programme have become the ideology of a growing section of the people, and that any attempt to stifle the expression or propagation of these ideas by starting proceedings in contempt would be in violation of his fundamental right under Art.19(1) of the Constitution. He further submits that judiciary is only one of the organs of the State, that the people of India are supreme, that the organs of the State are only the servants or agents of the people, and that although judgments and orders of courts must be respected and obeyed until the system is changed, he has every right to point out the defects of the system and educate the people and create the public opinion necessary for establishing a better system. J He contends that there is no correspondence between the will of the people as embodied in legislations and the decisions of courts, that the decisions of courts often thwart the will of the people as expressed in legislations, that judiciary in a State dominated by the economically powerful class will unconsciously favour that class at the expense of the exploited class, and that honest criticisms of the judiciary from the point of view of his philosophy cannot in any view be considered as contempt of court. 6. The President of the Advocates' Association intervened in the proceedings and supported the application. The learned Advocate General, who appeared in pursuance of the notice issued by the Court, submitted that the proceedings are misconceived. 7. Art.19(1)(a) of the Constitution enshrines the principle of freedom of speech. The material portion of Art.19(2) states that the existing law in relation to contempt of courts, in so far as it imposes reasonable restrictions on the freedom of speech, will continue to operate. In order to appreciate the contention of the respondent, that in making the statement he was only exercising his fundamental right of free speech under Art.19(1)(a), it is necessary to consider the scope of free speech in a democratic country like ours. 8A. In Witney v. California 274 US 357, 375-376 Mr. Justice Brandeis in his concurring opinion said: "Those who won our independence believed .......... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. 8A. In Witney v. California 274 US 357, 375-376 Mr. Justice Brandeis in his concurring opinion said: "Those who won our independence believed .......... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought hope and imagination, that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law the argument of force in its worst form". The makers of our Constitution valued liberty both as an end and as a means. They made it clear in the preamble to the Constitution, for one of the objects for which the Constitution was established is to secure to the citizens "liberty of thought, expression, belief, faith and worship". They believed that freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political truth. And notwithstanding the criticism in some quarters in characterising this and other fundamental rights as transcendental, I think, they deserve the appellation in view of the logic involved in the majority decision of the Supreme Court in Golak Nath v. State of Punjab AIR 1967 SC 1643 . "The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. "The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for, as Bagehot points out, once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest." (See 'Free Speech in the United States' page 31, by Zacharia Chaffee.) One need not have the confidence of Milton in the ultimate victory of truth over falsehood or of Justice Holmes in the 'competition of the market' as the 'best test of truth' to believe that free discussion is a better ally of truth than of falsehood. 9. Cooley said that the purpose of free speech clause' has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. (See 'Constitutional Limitations' by T. M. Cooley, 2nd Edn. page 892). "The First Amendment" said Judge Learned Hand "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all". (See United Stales v. Associated Press 52 F. Supp. 362, 372.) 10. Public discussion of public issues together with the spreading of information and any opinion on those issues must have a freedom unabridged, unless there is some countervailing social interest of greater value. The whole gamut of public affairs is the domain for fearless and critical comment, and not the least the administration of justice. 11. The authority to govern the people of India belongs to the people themselves, acting as members of a corporate body politic. They are both the governed and the governors. The whole gamut of public affairs is the domain for fearless and critical comment, and not the least the administration of justice. 11. The authority to govern the people of India belongs to the people themselves, acting as members of a corporate body politic. They are both the governed and the governors. By the Constitution, the people established subordinate agencies, such as the legislature, the executive and the judiciary, and delegated to each of them specific powers as were necessary for doing the assigned tasks. These agencies have no other powers. The most significant power, which the people reserved to themselves, is the right to govern themselves by electing their representatives to the State legislatures and the Parliament. It is to exercise the supreme function of governing the country, that the people reserved to themselves the freedom of speech, and that is why Cardozo said "freedom of speech is the matrix on which all other liberties are founded." 12. The interest of society in free speech is that it is the means of interchange of ideas for bringing about political and social changes desired by the people. It is the means to protect the paramount public interest in a free flow of information to the people concerning public officials, their servants. The maintenance and opportunity for free political discussion to the end that Government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a principle of our Constitutional system. In matters having 'governing importance' or 'redeeming social value', the right of free speech should have unabridged content, for otherwise self government would become practically impossible. "For speech concerning public affairs is something more than self expression; it is the essence of self government". (See Garrison v. State of Louisiana 379 US 64). Political participation of the people with its concomitant supremacy of popular will on basic questions and the responsibility of government to the people is the first postulate of democracy. 13. Although the First Amendment to the American Constitution says that the Congress shall make no law abridging freedom of speech, nobody has taken the 'absolute' view of the Amendment and denied all governmental power to regulate speech as such. 13. Although the First Amendment to the American Constitution says that the Congress shall make no law abridging freedom of speech, nobody has taken the 'absolute' view of the Amendment and denied all governmental power to regulate speech as such. The 'redeeming social value', the 'clear and present danger' and the 'balancing of interest", all recognise governmental power to inhibit speech. In Roth v. United States 354 US 476 Mr. Justice Brennen said: "All ideas having even the slightest redeeming social importance unorthodox ideas, even ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.". What is implicit in the First Amendment is made explicit in Art.19(2). Dr. Ambedkar said in the Constituent Assembly: "That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court". (See 'Constituent Assembly Debates, Vol. 7, page 40). The reason why certain utterances are excluded from the ambit of Art.19(1)(a) is that such utterances are not essentially part of the exposition of any ideas and have no social value so that any benefit that may be derived from them is clearly outweighed by other interests in public order, morality, decency or other social interest of greater value. Take for instance the laws relating to defamation. Art.19(2) says that the laws in relation to defamation, insofar as they impose reasonable restriction upon the liberty of speech shall continue in force. In the case of private defamation, one individual does damage to another; the person so injured in reputation or property may sue for damages, and freedom of speech gives him no protection because his verbal attack has no relation to the business of governing. If, however, the same verbal attack is made in order to show unfitness of a candidate for governmental office, the act is properly regarded as a citizen's participation in Government. If, however, the same verbal attack is made in order to show unfitness of a candidate for governmental office, the act is properly regarded as a citizen's participation in Government. The same principles hold good if a person attacks by words of disapproval and condemnation the policies of government, the structure of the Constitution, or the defects in the functioning of any other agency established by or with the authority of the people. Why? Because these are public issues concerning which, under our form of government, he has authority, and is competent to judge. Though private libel will be subject to the law of defamation, political or seditious libel is not, the reason being that the citizen is here participating in the governance of the country, and if he is subjected to action for damages, or any other penal consequence, self government would come to and end. I will try to illustrate my point by referring to a unanimous decision rendered by the Supreme Court of America, in 1964, having far reaching importance in this area, and the subsequent decisions following it. 14. In New York Times v. Sullivan (376 US 254), an action for libel was brought in the Circuit Court of Montgomery County, Alabama, by a city commissioner of public affairs, whose duties included the supervision of the police department. The action was brought against the New York Times for publication of a paid advertisement describing the maltreatment in the city of Negro students protesting against segregation, and against four individuals whose names, among others, appeared in the advertisement. The jury awarded plaintiff damage? of $500,000 against all defendants, and the judgment on the verdict was affirmed by the Supreme Court of Alabama on the ground that the statements in the advertisement were libellous per se, false, and not privileged, and that the evidence showed malice on the part of the newspaper; the defendants' constitutional objections were rejected on the ground that the First Amendment does not protect libellous publications. The Supreme Court of the United States reversed the judgment below and remanded the case to the Alabama Supreme Court. It was held that the rule of law applied by the Alabama Courts was constitutionally deficient for failure to provide the safeguards for freedom of speech and press that are required by the constitutional guaranty in a libel action brought by a public official against his critics. It was held that the rule of law applied by the Alabama Courts was constitutionally deficient for failure to provide the safeguards for freedom of speech and press that are required by the constitutional guaranty in a libel action brought by a public official against his critics. The Supreme Court was required in this case to determine for the first time the extent to which the constitutional protections of free speech limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct. The crucial question was whether protection of the free speech clause limited the power of the State to apply the libel law principles, since the statement was made in criticism of the official conduct of a public servant. In other words, the case presented an example of an activity that Dr. Meiklejohn called an activity of governing importance. The Court held that Alabama's use of its civil libel laws violated the constitutional guaranty. The Court did not rely upon "clear or present danger", or "redeeming social value" or "balancing" tests. The Court examined only the central meaning of free speech in a democratic country, and said: "Madison prepared the report in support of the protest. His premise was that the Constitution created a form of Government under which "The people, not the government, possess the absolute sovereignty'". The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was 'altogether different' from the British form, under which the Crown was sovereign and the people were subjects. 'Is it not natural and necessary, under such different circumstances,' he asked, 'that a different degree of freedom in the use of the press should be contemplated?'............. Earlier, in a debate in the House of Representatives Madison had said: 'If we advert to the nature of Republican government, we shall find that the censorial power is in the people over the government and not in the government over the people'." Mr. Justice Black with the concurrence of Dounglas J., said: "While our Court has held that some kinds of speech and writings, such as 'obsceuity', Roth v. United States (354 US 476) ...... Justice Black with the concurrence of Dounglas J., said: "While our Court has held that some kinds of speech and writings, such as 'obsceuity', Roth v. United States (354 US 476) ...... and 'fighting words' Chaplinsky v. New Hampshire (315 US 568), are not expression within the protection of the First Amendment, freedom to discuss public affairs and public officials is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalise it through libel judgments is to abridge or shut off discussion of the very kind most needed." Mr. Justice Goldberg said: "In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticised ...... x x x Freedom of press and of speech insures that government will respond to the will of the people and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self governing society. The imposition of liability for private defamation does not abridge the freedom of public speech or any other freedom protected by the First Amendment. This, of course, cannot be said 'where public officials are concerned or where public matters are involved ........ One main function of the First Amendment is to ensure ample opportunity for the people to determine and resolve public issues. Where public matters are involved, the doubts should be resolved in favour of freedom of expression rather than against it......'" Professor Kalven's evaluation of the case is as follows: "The Amendment has a 'central meaning' a core of protection of speech without which democracy cannot function, without which, in Madison's phrase, 'the censorial power' would be in the government over the people and not 'in the people over the government'. This is not the whole meaning of the Amendment. There are other freedoms protected by it. But at the center there is no doubt what speech is being protected and no doubt why it is being protected. The theory of the freedom of speech clause was put right side up for the first time". This is not the whole meaning of the Amendment. There are other freedoms protected by it. But at the center there is no doubt what speech is being protected and no doubt why it is being protected. The theory of the freedom of speech clause was put right side up for the first time". (See The New York Times Case A Note on "The Central meaning of the First Amendment' in 1964 Supreme Court Review 191-79 Harvard Law Review 1 at 10.) Professor Kalven continued: "There is the analogy to Barr v. Matteo and the privilege of the high ranking government executive. The rationale in Barr was that tile threat of damage suits would dampen the order of the official for the performance of his duties. 'Analogous considerations support the privilege for the citizen critic of government. It is as much his duty to criticise as it is the official's duty to administer. It is now not only the citizen's privilege to criticise his government, it is his duty. At this point in its rhetoric and sweep, the opinion almost literally incorporated Alexander Meiklejohn's thesis that in a democracy the citizen as ruler is our most important public official". This decision was followed in Garrison v. Louisiana (379 US 64). This was a conviction under a criminal defamation Statute of the District Attorney of Orleans Parish. In a press interview, he had attributed a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations of the judges, and accused them of hampering his efforts to enforce the vice laws, saying in the latter connection that "this raises interesting questions about the racketeer influences on our eight vacation minded judges'. The Court applied the New York Times principle in reversing the conviction. 15. The inevitable logic of these decisions has taken the Supreme Court of the United States to the holding that criticism of the conduct of a public figure in relation to public matters is immune from libel laws. In Curtis Publishing Company v. Butts (388 US 130) the Supreme Court decided the basic question that was left unanswered in New York Times v. Sullivan (376 US 254) (quoted supra), namely, whether the constitutional guarantees of freedom of speech and of the press prohibit libel suits by public figures who are not public officials. The court ruled that such suits are prohibited, unless malice is proved. The court ruled that such suits are prohibited, unless malice is proved. The Chief Justice wrote an opinion concurring in the result which argued that the doctrine laid down in the New York Times case should be applied to public figures as well as public officials and that there was 'no basis in law, logic, or First Amendment policy' for not doing so. The Chief Justice added that he would affirm the Butts Judgment because he saw in the conduct of the Saturday Evening Post the 'reckless disregard for the truth' which was made an exception to the New York Times rule. (See a brief report of the decision in American Bar Association Journal, September 1967, page 853). 16. I do not overlook the fact that it may sometimes be difficult to have a cut and dried answer to the question, whether a speech is one having governing importance or not. (See the criticism of Dr. Meiklejohn's view by Zacharia Chaffee in 62 Harward Law Review, page 891 at 899). But to say that because something cannot be cut and dried or nicely weighed it does not exist is fallacious. Lord Raid said, when it was contended that the concept of natural justice is sadly lacking in precision as to be practically meaningless: "In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured, therefore it does not exist". (See Ridge v. Baldwin) 1964 AC 40, 64. Aristotle long ago said: "We must be content, the", in speaking of such subjects and with such premises to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premises of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type of statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs". In the same spirit, therefore, should each type of statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs". (See 'Nicbomachean Ethics' in the "Basic Works of Aristotle", Edited by Richard Mckeon, page 936.) The principle of the decision in New York Times v. Sullivan 376 US 254 and the cases following it, as I understand it, is that notwithstanding the curb on the freedom of speech by libel laws, when the fundamental right of free speech is asserted in respect of the public conduct of an officer, or a public figure, the greater interest in the democratic process of discussion of public affairs must prevail, and the libel laws must not be allowed to paralyse the right of a citizen to participate by free discussion in self government; the only qualification being that knowingly false statement and false statement made with reckless disregard of the truth do not enjoy constitutional protection See the question discussed in 'The Supreme Court and the Meiklejohn Interpretation of the First Amendment' by Brennen Jr., Associated Justice of the Supreme Court of America - 79 Harvard Law Review 1. I think, the same principle must apply in the case of a supposed libel on a court or judges by scandalising it. If the respondent in his statement was discussing a matter of public or governing importance and I think he was then the law of contempt by scandalising court should not stand in his way, as that would be an unreasonable restriction of his fundamental right of free speech. If the respondent in his statement was discussing a matter of public or governing importance and I think he was then the law of contempt by scandalising court should not stand in his way, as that would be an unreasonable restriction of his fundamental right of free speech. The constitution makers when they reserved to e people the right of free speech, did not and could not have thought that if the existing law of contempt by scandalising a court would prevent the people from exercising their right of self government, it would be a reasonable restriction upon their right of free speech, and therefore, I think that law of contempt by scandalising the court, should be construed in such a manner as not to prevent a citizen from expressing his views in matters having public or governing importance, whether as to the supposed defects in the administration of justice by courts or as to the proposed remedies thereto. 17. Look at the development of the law of seditious libel in this country. Historically, exciting disaffection towards the administration of justice, or bringing it into contempt by words or visible representation, was considered as seditious libel. (See Stephen's definition of 'seditious intention' in his 'Digest of Criminal Law' page 66.) S.124A of the Indian Penal Code runs as follows: "Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring into harted or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine." In Queen Empress v. Bal Gangadhar Tilak ILR 22 Bombay 112 Strachey J., interpreted the section and said that the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government, that it is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small, and that whether any disturbance, or outbreak was caused by the publication, is absolutely immaterial. The Federal Court in Niharendu Dutt Majumdar v. Emperor AIR 1942 FC 22 held that the foundation of the offence of sedition was public disorder and it is only if there is tendency in the utterance to cause public disorder that the offence is committed. The court said that creating disaffection by words or representation towards the government or bringing the government into contempt or ridicule would not constitute the offence. The Privy Council in Emperor v. Sadasiv AIR 1947 PC 82 dissented from the view of the Federal Court and said that creating disaffection towards government or bringing it into contempt or ridicule by any words or representations was the gist of the offence. In Kedar Nath v. State of Bihar AIR 1962 SC 955 the Supreme Court held that if the construction put upon the section by the Privy Council is followed, the section would be repugnant to the fundamental right guaranteed under Art.19(1)(a); but the court salvaged the section by resorting to the familiar principle of construing the section so as to limit its operation in order that it may harmonise with the fundamental right of free speech. The court said that it is only when the words, written or spoken etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order and that it is only then that the section would strike the correct balance between individual's fundamental rights and the interest of public order. 18. A change in the perspective as to the relative relationship between the ruler and the ruled has mainly contributed to this result. Sir James Stephen said that two different views may be taken of the relation between rulers and their subjects, that if the ruler is regarded as the superior of the subject, as being by the nature of his position presumably wise and good, the rightful ruler and guide of the whole population, it must necessarily follow that it is wrong to censure him openly, that even if he is mistaken his mistakes should be pointed out with the utmost respect, and that whether mistaken or not no censure should be cast upon him likely or designed to diminish his authority. But if on the other hand, the ruler is regarded as the agent and servant and the subject as the wise and good master who is obliged to delegate his power to the so called ruler because being a multitude he cannot use it himself, it is obvious that this sentiment must be reversed. Then he said: "Every member of the public who censures the ruler for the time being exercises in his own person the right which belongs to the whole of which he forms a part. He is finding fault with his servant. If others think differently they can take the other side of the dispute, and the utmost that can happen is that the servant will be dismissed and another put in his place, or perhaps that the arrangements of the household will be modified. To those who hold this view fully and carry it out to all its consequences there can be no such offence as sedition, There may indeed be breaches of the peace which may destroy or endanger life, limb or property, and there may be incitements to such offences, but no imaginable censure of the government short of a censure which has an immediate tendency to produce such a breach of the peace, ought to be regarded as criminal". (See Stephen's History of Criminal Law of England, Voll. II, page 299-300). To Strachey J., and to Lord Holt, the essence of sedition consisted in creating by words or representation bad feelings towards government In his summing up to the jury in R. v. Tutchin 14 State Trials 1197-1200, Lord Holt said: "To say that corrupt officers are appointed to administer affairs is certainly a reflection upon the government. ................. For it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavour to produce animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it is punished. (See Stephen's History of Criminal Law of England, Vol. And nothing can be worse to any government than to endeavour to produce animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it is punished. (See Stephen's History of Criminal Law of England, Vol. II, page 318.) If today it is necessary to read S.124A of the Indian Penal Code, notwithstanding its clear wording, in the manner indicated by the Supreme Court in Kedar Nath's case AIR 1962 SC 955 in order that it may consist with the fundamental right under Art.19(1)(a), I do not know why we should not read the law of contempt by scandalising a court in the same manner. As I have said, if we read the law of contempt by scandalising a court in such a way as to prevent a citizen from exercising his fundamental right of free speech, on matters having governing importance, the law would be imposing unreasonable restrictions upon his fundamental rights and to that extent would be invalid, and therefore, we have to read the law of contempt by scandalising a court in such a way as to harmonise it with the fundamental right of free speech. This would mean that we would have to limit the operation of this branch of the law of contempt to certain definite situations. Vindictive or scurrilous attacks on a court or a judge based on allegations known to be false" or made recklessly may amount to contempt by scandalising the court. The use of calculated falsehood may put a different cast on the constitutional question. For, use of a known lie as tool is at once at odds with the premises of democratic Government. 19. The administration of justice is an indispensable function of civilised society. The adjudication of controversies between its citizens and between citizens and the State in accordance with law is essential to the existence of any society. The right to sue and defend in the courts is the alternative for force. In an organised society, it is the right conservative of all other rights, and lies at the foundation of orderly government, but in a republican constitution where the government is of the people, by the people, and for the people, judges as persons or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. In an organised society, it is the right conservative of all other rights, and lies at the foundation of orderly government, but in a republican constitution where the government is of the people, by the people, and for the people, judges as persons or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice, they should not forget their common human frailties and weaknesses. "There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. "(Frankfurter J., in Bridges v. California 314 US 252). 20. The respondent seems to be under the impression that judges should reflect the popular will in their judgments and orders. It is a mistake to suppose that judges express the popular will in any ordinary meaning of the term. Marshall C. J., said that courts have no will of their own. They only express the will of the law. (See Osborne v. lank of United States 9 Wheat. 738, 866). To that extent alone judges reflect the popular will. But they must be aware of the changing social tensions in every society which makes it an organism, which demand new schemata of adaptation, and which will disrupt it if rigidly confined. Because judges have power to punish for contempt in certain situations, judges are not superior to other officials. They merely exercise a function historically and intrinsically different. The purpose of the power to punish for contempt is not to protect the court as a mystical entity or the judges as individuals set apart from the community and spared the criticism to which in a democracy other public servants are exposed. The purpose is to carry on the administration of justice without hindrance, or pressure or danger of prejudice to the parties. In Oswald's 'Contempt of Court', page 1 it is said: "In its original, all legal contempt will be found to consist in an offence more or less direct against the sovereign himself as the fountain head of law and justice, or against his Palace where justice was administered." In Rex v. Almon 1765 Wilm. In Oswald's 'Contempt of Court', page 1 it is said: "In its original, all legal contempt will be found to consist in an offence more or less direct against the sovereign himself as the fountain head of law and justice, or against his Palace where justice was administered." In Rex v. Almon 1765 Wilm. 243 Justice Wilmot observed: "It is a necessary incident to every court of justice whether of record or not to fine and imprison for contempt to the court acted in the face of it, and the issuing of attachment by the Supreme Courts of Justice in Westminister Hall for contempt out of court, stands upon the same immemorial usage as supports the whole fabric of common law .... The arraignment of the justice of judges is arraigning the King's Justice. It is an impeachment of his own wisdom and goodness, in the choice of his judges and excite in the minds of the people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of Justice and in my mind calls out for a more rapid and immediate redress than any other obstruction whatsoever, not for the sake of Judges as private individuals but because they are the channels by which the King's justice is conveyed to the people. To be impartial and universally thought so, are both absolutely necessary for giving justice that free, open and uninterrupted current which it has, for many ages, found all over this kingdom." The power to punish for contempt by scandalising a court is understandable when seen through the perspective of its age of inception, an age of alleged divinely ordained monarchies, ruled by a king totally invested with all sovereign legal powers and accountable only to God. Under any circumstances resistance to the king was a sin which would bring damnation. (See 'The Contempt Power' by Goldfarb, page 11.) Wanchoo J., as he then was, said in his dissenting judgment in Director of Rationing & Distribution v. The Corporation of Calcutta & others 1961 (1) SCR 158 , 185. Under any circumstances resistance to the king was a sin which would bring damnation. (See 'The Contempt Power' by Goldfarb, page 11.) Wanchoo J., as he then was, said in his dissenting judgment in Director of Rationing & Distribution v. The Corporation of Calcutta & others 1961 (1) SCR 158 , 185. "When the King as the embodiment of all power executive, legislative and judicial has disappeared and in our republican Constitution, sovereign power has been distributed among various organs created thereby, it seems to me that there is neither justification not necessity for continuing the rule of construction based on the royal prerogative. It is said that though the King has gone, sovereignty still exists and therefore what was the prerogative of the King has become the prerogative of the sovereign. There is to my mind a misconception here. It is true that sovereignty must exist under our Constitution; but there is no sovereign as such now. In England, however, the King is synonymous with the sovereign and so arose the royal prerogative. But in our country it would be impossible now to point to one person or institution and to say that he or it is the sovereign under the Constitution." Roscoe Pound has observed: "Austin held that there must be some single determinate person or determinate body of persons in every state which corresponds to the British Parliament or to the French King before the Revolution, and that its sovereignty cannot be divided. But in a federal state sometimes all that can be found is an ultimate body of no definite make up or organization which can amend the Constitution without legal limitation." (See 57 Harward Law Review page 1211.) The dissenting judgment of Wanchoo J., as he then was, was approved by the majority judgment of the Supreme Court in State of W. B. v. Corporation of Calcutta AIR 1967 SC 997 . I doubt, whether the restrictions upon the fundamental right of free speech in matters of public importance in the law of contempt by scandalising the court, if the bases of the law are those stated by Wilmot J., will be reasonable in the context of the altered conception of sovereignty in the republic of India. "It is revolting to have a no better reason for a rule of law than that so it was laid down in the time of Henry IV. "It is revolting to have a no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of past.' (See 'The Path of the Law' By Holmes, 'The Holmes Reader', 2nd Edn., page 50) Although the existing law in relation to contempt would continue to operate under Art.19(2) the basis of the law of contempt must be different after the Constitution. Whether the basis is 'necessity', 'expediency', or 'inherent power', as I said, in a democratic republican Constitution courts as institutions or judges as individuals are entitled to no greater immunity from criticism than other institutions or individuals. The concept of courts as institutions or judges as channels of justice participating vicariously in the sentimental halo surrounding the king and his palace is alien to the spirit of the republic. And when we reflect how good opinion about government was once thought essential to the safety of the realm, and how that is considered as unimportant to day from a legal point of view one may be pardoned for being sceptical about the fatal obstruction to justice, if the wisdom and goodness of the choice of judges are impeached, or general dissatisfaction created with the administration of justice, if it is done in the exercise of the right to discuss public affairs. Allegiance and obedience to law in the modern society depend upon several factors. They have been analysed with great penetration by Lord Bryce in his essay on 'Obedience' in "Studies in History and Jurisprudence", Vol. II, page 1. That courts function in a republic like America without the safeguard of this particular contempt power should induce in us the sobering reflection that allegiance to law is not dependent upon the existence of this power. That allegiance and obedience to law would come to an end if courts and judges are freely criticised is an irrational fear. As Justice Brandeis said "men feared witches and burned women. That allegiance and obedience to law would come to an end if courts and judges are freely criticised is an irrational fear. As Justice Brandeis said "men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears." (See Witney v. California 274 US 357, 375-376, already referred to.) To be a reasonable restriction on the fundamental right of free speech, the law imposing it must be grounded on reason. Criticism of administration of justice was tabooed, because no criticism of the King, the source of all justice, was permitted, as the King was thought to be divinely ordained. There must be some other rational ground today for inhibiting the freedom of speech in matters of public importance. 21. It is wrong to assume that respect for judiciary can be won by shielding judges or courts from public criticism. An enforced silence, solely in the name of preserving the dignity of the court would probably engender resentment, suspicion, and contempt more than it would enhance it. In Govt. Pleader v. Subhanrao AIR 1938 Bombay 197 Beaumont C. J., observed: "At the same time one has to recognize that in the long run the degree of confidence reposed in the judiciary will depend on the character of judicial work, and confidence cannot be for long artificially engendered by the simple process of stifling criticisms". The same idea was echoed by the authors of the article 'Contempt by Publication in the United States' in 28 Columbia Law Review page 552: "The only solid basis for respect for courts is the excellence of their performance. Good courts are respected, even though they may sometimes be subjected to unfair vindictive comment -- a risk naturally incident to any public employment." In Ambard v. Attorney General AIR 1936 PC 141 Lord Atkin said: "But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in privateer public the public act done in the seat of justice. The path of criticism is a public way. The path of criticism is a public way. The wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice, or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men. x x x x They have come to the conclusion that there is no evidence upon which the Court could find that the appellant has exceeded this right, or that he acted with untruth or malice, or with the direct object of bringing the administration of justice intodis repute.'' In Ramakrishna Reddy v. State of Madras AIR 1952 SC 149 the appellant before the Supreme Court was the Editor of a paper. In an issue of the paper he published an article under the caption "Is the Sub Magistrate, Kowur corrupt". The purpose of the article was that Surya Narayana Murthi, the Stationary Sub Magistrate of Kowur, was known to the people of the locality to be a bribetaker and to be in the habit of harassing litigants in various ways. When the attention of the State Government was drawn to this article, the Advocate General of Madras filed an application before the High Court praying that suitable action may be taken against the appellant as well as other persons. The High Court held that the publication amounted to contempt of court. The Supreme Court upheld the finding. In the course of the judgment B. K. Mukherjea J., said: "If the allegations were true, obviously it would be to the benefit of the public to bring these matter into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute. The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein. He admitted that the statement was based on hearsay. The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein. He admitted that the statement was based on hearsay. Rumours may have reached him from various sources, but before he published the article it was incumbent upon him as a reasonable man to attempt to verify the informations he received and ascertain, as far as he could, whether the facts were true or mere concocted lies. He does not appear to have made any endeavour in this direction. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide even if good faith can be held to be a defence at all in a proceeding for contempt." The observations of the learned Judge would make it clear that if the appellant were able to make out the case of corruption he would have been immune. The learned Judge said that if the allegations were true, it would obviously be a matter of benefit to the public to bring them to the notice of the public. This is a recognition of the fundamental proposition that if discovery and dissemination of truth concerning public affairs or matters having governing importance is the object of free speech in a democratic society, truth may not be the subject of civil or criminal sanction. If discovery and dissemination of truth concerning public affairs is to the benefit of the public and would be a defence in proceedings for contempt of court by scandalising it, the necessary corollary is that the defence will be available even if the tendency of the speech is to create bad feeling towards the court in the minds of the public, To say that when truth is spoken, the tendency to create bad feeling will be less or nil is to make an unrealistic approach to the problem. A speech can become offensive if only there is the tendency, and if truth is a justification or defence, the justification or the defence must be available notwithstanding the tendency. That, I understand, is the meaning of the observations of the learned Judge. 22. And it is an easy step from this to say that criticism based on materials bona fide believed to be true must also stand on the same footing. That, I understand, is the meaning of the observations of the learned Judge. 22. And it is an easy step from this to say that criticism based on materials bona fide believed to be true must also stand on the same footing. The sweeping dicta in several Indian cases that truth is no justification in proceedings for contempt of a court committed by scandalising it, may fly in the face of the observations of the learned Judge. That truth is a defence in a criminal prosecution for defamation by a speech discussing public affairs has been held in Garnson v. State of Louisiana 379 US 64. The court said: "Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since erroneous statement is inevitable in free debate and ....... it must be protected if the freedoms of expression are to have 'breathing space' that they need to survive." Madison was of opinion that some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. In Aswini Kumar v. Arabinda Bose, AIR 1953 SC 75 , the 'Times of India, published an article under the 'heading' 'A disturbing decision' stating that the decision of the Supreme Court was arrived at on extraneous considerations. The court said that as the article attributed improper motives to the judges it transgressed the limit of fair and bona fide criticism. The Court quoted with approval Lord Atkin's observations in Ambard v. Attorney General AIR 1936 PC 141 referred to above. In Brahma Prakash v. State of U.P. AIR 1954 SC 10 the appellants before the Supreme Court were members of the Executive Committee of the District Bar Association of Muzaffarnagar in Uttar Pradesh. The case against them was that certain resolutions were passed by the Executive Committee and copies of the resolutions were forwarded to the District Magistrate and other officers with a covering letter signed by appellant No. 1. The resolution stated that the offers functioning at the place are thoroughly incompetent, that they do not inspire confidence in their judicial work and are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and the lawyers. The resolution stated that the offers functioning at the place are thoroughly incompetent, that they do not inspire confidence in their judicial work and are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and the lawyers. The meeting of the Bar Association was held in camera and no non member was allowed to be present. The question was whether the appellants were guilty of contempt of court. In considering the question B. K. Mukherjea J., speaking for the Court referred to Rex v. Gray 1900 (2) QB 36 and said: "It seems, therefore, that there are two primary considerations which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by 'scandalising' the court itself. In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his official duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. It is not by stifling criticism that confidence in courts can be created." and then he referred to the oft quoted passage of Lord Atkin in Ambard v. Attorney General AIR 1936 PC 141 . The Supreme Court in Appeal No. 110 of 1960 observed: 'In a free country where the free expression of one's honest opinion is a cherished right, enshrined in our Constitution, Judges should not be over sensitive in respect of remarks directed against them, as a body, so long as those remarks are within proper limits of public criticism of a question on which there may be differences of opinion." Harold J. Laski said that there must be the utmost freedom to criticise in a democratic State, that its corollary is the clear inference, insisted upon by Mr. Justice Holmes in a classic opinion, that the boundaries to the expression of opinion, ought only to be set by the imminent danger of public disorder, and that against such a canon the present English procedure seriously offends. Justice Holmes in a classic opinion, that the boundaries to the expression of opinion, ought only to be set by the imminent danger of public disorder, and that against such a canon the present English procedure seriously offends. He further said that while the privilege of Parliament would leave its members free to speak strongly upon matters concerning the judiciary, all other persons who, even from the highest motives, may choose to criticise the courts, find the scales heavily weighted against them. (See 'Studies in Law and Polities' by Harold J. Laski, page 234.) Arthur L. Goodhart speaking about Laski's article said that there is great weight in Professor Laski's chief argument that as the law of constructive contempt may prevent criticism of the judiciary, it is in conflict with the case for a wide freedom to criticise in a democratic state. (See 48 Harward Law Review 885). 23. Let us see whether in the light of the decisions of the Privy Council and the Supreme Court referred to above the respondent has committed contempt by scandalising the courts. It is argued by the petitioner that the statement that "Marx and Engels considered the judiciary as an instrument of oppression" is sufficient by itself to show that the respondent has committed contempt by scandalising all the courts in the country. A general proposition deduced from a theory of State propounded by Marx and Engels and applicable to the judiciary in all the capitalistic States in the world can hardly amount to scandalising a court or judge. This court's juris diction to take cognizance of contempt under Art.215 is limited to a contempt of itself or of courts subordinate to it. The respondent's statement should be viewed from the back ground of his philosophy. That philosophy, as I gather it from the affidavit of the respondent, is this: Every society is the theatre of conflict between economic classes for a larger material benefit, that is, for a larger share in the results to be distributed from the productive process. Since the power to produce within any society is dependent upon peace, the State must maintain law and order to that end. But, in so doing, it is necessarily maintaining the law and order implied in the particular system of class relations of which it is the expression. Since the power to produce within any society is dependent upon peace, the State must maintain law and order to that end. But, in so doing, it is necessarily maintaining the law and order implied in the particular system of class relations of which it is the expression. In feudal society, the law and order which the State maintains is the law and order necessary to the preservation of feudal principles. In a capitalist society, the State maintains the law and order necessary to preserve capitalist principles. The State is always at the disposal of that class in the community in which is vested the legal title to the ownership of instruments of production. The law it makes will be law for their interest. The ownership it maintains will be their ownership. If the number of owners, therefore, in a State be few, the bias of the law will be towards the interest of that few. There is equality before the law only when the price of admission to its opportunities can be equally paid. The successful lawyer the class from which the members of the judiciary are mostly drawn spends his life in ministering to the dominating class of our society. It is wholly natural, therefore, that he should come, as a general rule, to share its outlook, that his intellectual influence, therefore, should largely be exercised on its behalf. Law is never impartial in the sense of being above the battle, or indifferent to the results which may emerge. The courts, on the contrary, are a fundamental instrument in that battle. They shape the contours of the society, more interstitially, perhaps, because less directly, than either the legislature or the executive; but they are bound to the same purpose. They give effect to the result of the conflicting class antagonisms which shape the atmosphere in which they have to work. 24. I may not agree with this theory of State or the deduction therefrom as regards the character of the judiciary. But my disagreement with the theory or the deductions therefrom has nothing to do with the right of the respondent to express it. I do not think that a general proposition like the one in question will tend to impair the administration of justice. The coin whether spuriours or genuine has been current in the country sufficiently long. But my disagreement with the theory or the deductions therefrom has nothing to do with the right of the respondent to express it. I do not think that a general proposition like the one in question will tend to impair the administration of justice. The coin whether spuriours or genuine has been current in the country sufficiently long. The blasts of the theory or the deductions therefrom need not jolt judges out of their mornings at this late hour. Judges must learn to transcend their own convictions, and to leave room for much that they hold dear to be done away with, short of revolution by orderly change of law. They must not forget that what seem to them first principles are believed by half their fellow men to to be wrong. (See Holmes 'Collected Legal Papers' page 295). "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way", said Justice Holmes. (See the passage quoted in 'Our Constitution, Tool or Testament' by B. H. Levy at page 162.) 25. The petitioner contends that conscious partiality has been attributed to judges by saying that "judges are guided and dominated by class harted, class interests and class prejudices and where the evidence is balanced between a well dressed pot bellied rich man and a poor, ill-dressed and illiterate person, the judges instinctively favour the former, against the latter". A fair reading of the statement as a whole may not lead to that conclusion. In my view, what the respondent says is that judges being mostly drawn from a class, which shares the outlook and interest of the economically dominant class in the society, have unconscious loyalty and allegiance to that class and that makes them instinctively favour the rich when the evidence in the case is equally balanced between the rich and the poor No man can serve two masters. He will hate the one and love the other, or he will devote himself to the one and despise the other. The statement does not certainly mean that in weighing the evidence, the judges instinctively favour the rich. He will hate the one and love the other, or he will devote himself to the one and despise the other. The statement does not certainly mean that in weighing the evidence, the judges instinctively favour the rich. It can only mean that when the evidence is equally balanced, the instinctive tendency of judges is to decide the case in favour of the rich as against the poor. The instinctive preference for the testimony of the man who owns property and pays tax and is therefore 'respectable' is a common phenomenon in our courts. The respondent does not impute any conscious partiality to any judge. He did not say that in deciding all cases judges are dominated by class interest or class harted. He only said that judges are dominated by class harted and class interest which might probably amount to defamation of judges and therefore when the evidence is equally balanced, they instinctively favour the rich, an instinct brought about by training, upbringing, tradition, and the environment in which Judges move and have their being; an instinct, the unconscious pull of which they are not themselves aware. Banjamin Cardozo expressed the sentiment in his felicitous language. "Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace, not even the faintest, among the judges whom I have known. But every day there is borne in on me a new conviction of the inescapable relation between the truth without us and the truth within. The spirit of the age, as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties." (See 'The Nature of the Judicial Process by Benjamin Cardozo, page 175-179.) Cardozo then quoted a passage from Harvexy Robinson, to substantiate the argument that judges also listen to the still voice of the herd and are ready to defend and justify its instructions and warnings and accept them as the rational result of their reasoning. I am aware that in Reg. v. Colsey, Ex. I am aware that in Reg. v. Colsey, Ex. P, Director of Public Prosecutions, Times Newspaper May 9, 1931 it was held that attributing even unconscious bias to a judge would amount to contempt. (See the criticism of the ruling in 47 Law Quarterly Review 316). Here, the allegation is not directed against any particular judge. The sting, if any, in the allegation is lost in its generality. It has hardly any tendency to impair the administration of justice. In saying that the judiciary is weighted against workers and peasants the respondent was repeating in effect the time worn and weather beaten accusation against the judiciary. Roscoe Pound voiced much the same idea. "To economists and sociologists judicial attempts to force Benthamite conceptions of freedom of contract and common law conceptions of individualism upon the public of today are no less amusing -- or even irritating -- than legislative attempts to do away with or get away from these conceptions are to bench and bar, The nullyfying of these legislative attempts is not regarded by lay scholars with the complacent satisfaction with which lawyers are wont to speak of it. They do not hesitate to say that 'the judicial mind has not kept pace with the strides of industrial development.' They express the opinion that 'belated and anti social' decisions have been a fruitful cause of strikes, industrial discrod, and consequent lawlessness. They charge that 'the attitude of the courts has been responsible for much of our political immorality.' There are two ways in which courts impede or thwart social legislation demanded by the industrial conditions of today. This first is narrow and illiberal construction of constitutional provisions, state and federal. 'Petty judicial interpretations' says Professor Thayer, 'have always been, are now, and will always be, a very serious danger to the country'. The second is a narrow and illiberal attitude towards legislation conceded to be constitutional, regarding it as out of place in the legal system, as an alien element to be held down to the strictest limits and not to be applied beyond the requirements of its express language". The second is a narrow and illiberal attitude towards legislation conceded to be constitutional, regarding it as out of place in the legal system, as an alien element to be held down to the strictest limits and not to be applied beyond the requirements of its express language". (See 'Common Law and Legislation' in 21 Harvard Law Review pages 384, 385.) The discredited rule of interpretation evolved by courts that a statute is not presumed to alter the common law or vested right beyond what is expressly provided for in a statute has been a main hindrance in giving the full measure of relief intended by the legislature to tenants and workers in ameliorative legislations. Of the idiosyncracies of the judges, the respondent has not said anything more than what Cardozo has said: "It has been said 'History, like mathematics, is obliged to assume that eccentricities more or less balance each other, so that something remains constant at last.' The like is true of the work of courts. The eccentricities of judges balance one another. One judge looks at problems from the point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another a latitudinarian, one is timorous of change, another dissatisfied with the present; out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements". (See 'The Nature of the Judicial Process' by Benjamin Cardozo, page 175-179). 26. In Govt. Pleader v. Subhanrao AIR 1938 Bombay 197 Beaumont C. J., speaking for the Court, remarked that a statement applicable to all courts and judges, even though it might be libellous would not amount to contempt of court The learned Judge was there considering a speech, the material portion of which is as follows: "Today two three speakers have told you a good deal about the facts and incidents which have taken place. After this incident bad taken place I came to know (about it) at 11 O' Clock at night. Thereafter I arrived at that place .......................... For 150 years the Court and (administration of) justice have been going on (laughter). This 'farce' is for making a show. Martial law (was proclaimed) and what happened after that? Many incidents of that type occurred in the year 1932. Thereafter I arrived at that place .......................... For 150 years the Court and (administration of) justice have been going on (laughter). This 'farce' is for making a show. Martial law (was proclaimed) and what happened after that? Many incidents of that type occurred in the year 1932. I (will) tell you what happened in my case. I disobeyed the 'notice'. I went to the Court. I was put in the dock. The Magistrate was there, I was asked. 'Why did you disobey the notice?' Everything was done. The persons giving evidence against me their officers were sitting in front and went dozing and (they) were saying 'it is true. What the Saheb says is true'. If Haribhawoo Bhandari's programme had been gone through there was a programme fixed at (some) other place for the following day. I could not say. I went elsewhere to go through another programme. You know full well in your hearts what justice is done to us in the courts and how the witnesses and evidence are collected. Calamities are befalling you ............................... All this is a sort of 'Zoolum' (oppression or tyranny). If you wanted to disperse the meeting you could have done that in no time." (See the report of the speech in ILR 1938 Bombay 179) The learned Judge said: "In the present case the speech which is the subject matter of the charge does undoubtedly contain matter which shows that the speaker entertain in the popular sense of the word contempt of all courts of justice. Possibly on the context it might be said that the Courts of justice to which he is referring are the courts of his Presidency and that the speech should be so limited. But even if the speaker is expressing contempt for all courts of justice in this presidency, he is not making any attack on any particular judge or comment on any particular case, and, in my opinion, a general expression of opinion hostile to the utility of courts of justice is not likely to affect the public, and need not disturb the equanimity of judges. In my opinion the speech does not amount to such a contempt of court as should be dealt with by the process of contempt." I refuse to believe that the learned Judges were so softened by the apology tendered as to lay down bad law. In my opinion the speech does not amount to such a contempt of court as should be dealt with by the process of contempt." I refuse to believe that the learned Judges were so softened by the apology tendered as to lay down bad law. What they hold is that the speech does not amount to such a contempt of court as should be dealt with by process of court. Nothing prevented the learned judges from saying that although there is technical contempt, in view of the apology, the proceedings are dropped. They did not do so for obvious reasons. In the decision of the Supreme Court in Appeal No. 110 of 1960, the Court said: "In this connection it should be remembered that the appellant, at the relevant time, was the Secretary of the Indian Council of Public Affairs. He had thus a dual capacity. He was not only a practising advocate of the Court but was also a public man conducting the affairs of a public body, which functions publicly and claims to serve public interests. On the vary face of it, the statement was made by the appellant in his public capacity and not with reference to any particular Court." There is nothing new in the criticism of courts and judges by the respondent. What the respondent has expressed in his rather redundant discourse is a hackneyed idea; not that that will give immunity to the respondent from proceedings in contempt, if he is really in contempt, but that since no untoward calamity has fallen on the administration of justice or on the allegiance to law of the public from the currency of the idea, its tendency to impair the administration of justice is practically nil. "An ex Attorney General of England has said that the courts are prejudiced in labour cases. Mr. Winston Churchill has said the same thing; and so eminent a legal scholar as Professor Geldart has insisted upon this thesis with great emphasis. Yet no one has ever suggested that their observations ought to be followed by proceedings for contempt. The whole underlying note of the campaign against the Trades Disputes Act of 1927 was the insistence of its opponents that the courts were unfitted by the natural bias of their members for the resolution of the problems it would involve; yet no single prosecution for contempt has followed. The whole underlying note of the campaign against the Trades Disputes Act of 1927 was the insistence of its opponents that the courts were unfitted by the natural bias of their members for the resolution of the problems it would involve; yet no single prosecution for contempt has followed. Nothing, indeed, would have been gained by pretending that a wide spread suspicion of judicial impartiality is not characteristic of the trade unions both in England and America; and prosecution for contempt, so far from removing the suspicion, would only have confirmed it. (See Studies in Law and Polities' by Harold J. Laski, page 230). Scrutton L. J. in his address to the Cambridge University Law Society voiced this sentiment: "The other word I used was 'impartiality'. This is rather difficult to attain in any system. I am not speaking of conscious impartiality; but the habits you are trained in, the peoples with whom you mix, lead to your having a certain class of ideas of such a nature that when you have to deal with other ideas you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says: "Where are your impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?" It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class. Even in matters outside trade unionist cases (to some extent in workmen's compensation cases) it is sometimes difficult to be sure, hard as you have tried, that you have put yourself in a perfectly impartial position between the two litigants." (See 47 Law Quarterly Review 316). I am citing these passages to show the existence of an abiding and deep rooted sentiment in the working class that they cannot get impartial justice from courts. Whether the sentiment is right or not, it exists. And can we in the nature of the summary character of the proceeding dogmatically say that it is untrue? However, that is immaterial if the respondent bona fide believed in the truth of the allegations. Whether the sentiment is right or not, it exists. And can we in the nature of the summary character of the proceeding dogmatically say that it is untrue? However, that is immaterial if the respondent bona fide believed in the truth of the allegations. The Supreme Court said in Appeal No. 110 of 1960: "The statement read as a whole amounts to saying that the Government had not discharged their responsibilities fully and properly in the matter of appointments of High Court Judges. That opinion may be well founded or may be ill founded. That is not the question before us. The only question that we have to determine is whether that sentence read in the context of what has been said above can be said to bring the Patna High Court, or for the matter of that, any particular High Court into contempt. In our opinion, the High Court is in error incoming to the conclusion that it had that effect." 27. As I have said, the respondent is a member of a political party, which professes a particular philosophy of State and its organs As a member of the party he believes that in the present set up the system of administration of justice will only serve the ends of capitalism. The question is whether the respondent in good faith believes in this philosophy and has a right to express it. Of his sincerity and good faith, I have no reason to doubt. The petitioner himself says that "the respondent is a person of strong conviction and he has fidelity to his ideologies and I respect him for these qualities." There is no allegation that he is motivated by malice to any judge. In the nature of the generality of the allegations, malice is out of question. He has not attributed any improper motive to any judge. In his affidavit the respondent has stated that he never intended to scandalise any court or individual judge or impute any improper motive to judges or challenge the validity of individual judgments pronounced by them. He has stated that judgments and orders of the court should be obeyed until the system of administration of justice is changed. 28. In his affidavit the respondent has stated that he never intended to scandalise any court or individual judge or impute any improper motive to judges or challenge the validity of individual judgments pronounced by them. He has stated that judgments and orders of the court should be obeyed until the system of administration of justice is changed. 28. The respondent contends that he has the fundamental right as a citizen to educate the people about the defects in the administration of justice by courts from the point of view of his own ideology, and that he has every right to convert the people of this country to his creed by the democratic method of public discussion. He submits that if dissatisfaction is created among the public towards the judiciary by his criticism such collateral effect is inevitable. History tells us that no reformation of any human institution was brought about without first creating the ferment of discontent. That is the purpose and object of all criticisms. When a person is exercising his right of criticism of the judiciary what is relevant is whether he is actuated by bona fides; whether there is malice in him, whether improper motive has been attributed to any judge, or whether the direct object was to bring the administration of justice into disrepute. When there is good faith and absence of malice, when no improper motive has been attributed, and when there is no intention to bring the administration of justice to disrepute, the question of the tendency of the speech is immaterial. That much, I think, is clear from what was said by Lord Atkin in Ambard v. Attorney General AIR 1936 SC 141. However much you may torture the dictum of Lord Atkin, it will not yield the result contended for by the petitioner, namely, that the intention of the speaker is immaterial, if the tendency of the speech is to create bad opinion among the public about the administration of justice. I think, the expressions used by His Lordship, 'good faith', 'absence of malice', 'object of the speech', are all attributes of mind. Any criticism of administration of justice, even the mildest, will create some discontent in the mind of public about the judiciary. Every stone, whether tiny or big thrown into the water will create ripples. I think, the expressions used by His Lordship, 'good faith', 'absence of malice', 'object of the speech', are all attributes of mind. Any criticism of administration of justice, even the mildest, will create some discontent in the mind of public about the judiciary. Every stone, whether tiny or big thrown into the water will create ripples. In 'Contempt of Court - A report by Justice', Chap.2, it is said: "In our view, for an act to amount to contempt of court it should not be sufficient only to establish that it has some tendency to prejudice justice. To allow conduct which might possibly prejudice the administration of justice may be desirable in the public interest from other points of view." In Chap.4 of the Report it is stated: "In all cases of alleged contempt the element of prejudice to the due administration of justice should be weighed against any other public interest which might be affected by treating the act complained of as contempt of court ....." On a balancing of rival interests implicit in the test of reasonableness formulated by Patanjali Shastri C. J., in State of Madras v. V. G. Row AIR 1952 SC 196 , it will be found that the interest of society in self government by free discussion is much more important than the maintenance by coercive process of artificial and hypocritical respect for courts and judges. Kant said in his 'Metaphysics of Morals' that love as an internal feeling cannot be commanded. So also is respect. I think, the respondent, in making the statement was well within his right under the dictum laid down by Lord Atkin in Ambard v. Attorney General AIR 1936 PC 141 and approved by the Supreme Court in the cases already mentioned. 29. The respondent referred to a series of American decisions to show that the test whether contempt has been committed is to see whether there is a 'clear and present danger' of some substantive evil. This test has been formulated by Mr. Justice Holmes in Schenck v. U. S. 249 US 47, 52 and has been applied by judges in America to cases of contempt of court. In America no contempt is committed by what is known as 'scandalising a court.' "Such foolishness has long since been disavowed in England and has never found lodgment here" said Frankfurter J., in Bridges v. California 314 US 252. In America no contempt is committed by what is known as 'scandalising a court.' "Such foolishness has long since been disavowed in England and has never found lodgment here" said Frankfurter J., in Bridges v. California 314 US 252. Though he was mistaken by the later English cases, so far as England is concerned, he was right so far as his country is concerned. In respect of statements concerning pending case the question in America is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger as will bring about some, substantive evil that the Congress has a right to prevent. It is a question, of proximity and degree. 30. The view has been expressed that the 'clear and present danger' test has no application in this country to cases of contempt, because of the difference between the language of the First Amendment to the American Constitution and Art.19 of our Constitution. Although it may not be necessary for my purpose to express a final opinion about it, I would indicate my view out of deference for the argument at the Bar. Dr. Ambedkar said in the Constituent Assembly: "In the second place, it is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. ....... It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not". He further said: "What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power, it permits to State directly to impose limitations upon the fundamental rights. There is really no difference in the result. What one does directly the other does indirectly. In both cases, the fundamental rights are not absolute." (See. 'Constituent Assembly Debates', Vol. 7 page 40) See also the matter discussed at page 73 of 'The Indian Constitution' by Granville Austin. 31. In America judges test the exercise of the police power by the State by the due process clause and the main ingredient for the verdict would be whether the exercise of the power is reasonable in the circumstances. 7 page 40) See also the matter discussed at page 73 of 'The Indian Constitution' by Granville Austin. 31. In America judges test the exercise of the police power by the State by the due process clause and the main ingredient for the verdict would be whether the exercise of the power is reasonable in the circumstances. Willoughby in his commentary on the Constitution, Vol. III, page 1705 states: "This right of the courts to pass judgment upon the reasonableness of legislative regulations, as illustrated in their review of rates and other regulations established for the control of public service corporations and industries affected with a public interest, has likewise become well established with reference generally to enactments by legislatures in the exercise of their so called police powers. Here, as in the case of the fixing of rates, the courts have reserved to themselves not only the authority to determine whether or not a measure sought to be justified as a police regulation may properly be upheld as such, but also, at times, the competency to determine whether the police regulation, granting it to be such, is a reasonable one, the end sought and the amount, of interference with private rights entailed, being both considered." To say, therefore, that our courts are concerned only with the question whether the restrictions imposed are reasonable, and therefore, the judicial process, here, is different from what obtains in America, in this area, seems to me with great respect, to miss the point. We should not be carried away by labels. In substance when a legislation imposing restriction upon a citizen's liberty or property is tested under the due process clause what is being done by courts in America is stated by Justice Peckham in Lochner v. New York 198 US 45. 'In every case that comes before this Court, therefore where legislation of this (police) character is concerned and where the protection of the Federal court is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty?" How is this different from what is being done in this country when a legislation is Challenged as being an unreasonable restriction upon the liberty or property of a citizen? It might be that restrictions considered reasonable by our courts might be held unreasonable in America. But that does Wot touch the question as to the yardstick. The question of reasonableness might even vary with the social philosophy of individual judges, as stated by Patanjali Sastri C. J., in State of Madras v. V. G. Row AIR 1952 SC 196 . In the area of sedition the criterion formulated in "Kedar Nath's case AIR 1962 SC 955 is very near the real and present danger test The question then would be not whether a speech has a tendency to create a bad opinion about the judiciary but Whether it is calculated to bring about some substantive evil to the administration of justice in any real sense of the term. The test should be not whether the Words have a tendency to create disaffection towards the judiciary, but whether they have a tendency to bring about the substantive evil, namely, interference with the course of justice. The reason for applying the test would be that that alone might be a reasonable restriction upon the fundamental right of free speech. In considering the reasonableness of the restriction one must consider among other things, the nature of the right alleged to have been infringed, the underlying purpose of the restriction, and the extent and the urgency of the evil sought to the remedied. (See State of Madras v. V. G. Row AIR 1952 SC 196 ). "The phrase (real and present danger) itself is the expression of tendency and not accomplishment and the literary difference between it and reasonable tendency is not of constitutional dimension". (See Frankfurter J., in Bridges v. California 314 US 252). I think, there is close relationship between the 'real and present danger' test and the test formulated in Kedar Nath's case AIR 1962 SC 955 by the Supreme Court. 32. I do not think that any practical purpose will be served by this proceeding. In Anatha Lal Singh v. A. H. Watson AIR 1931 Calcutta 257 Rankin C. J., said that the court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice, and that it is not every theoretical tendency that will attract the action of the court in its very special jurisdiction. The learned Chief Justice further said that the purpose of the court's action is a practical purpose and, it is clear on the authorities that that court will not exercise its jurisdiction upon a mere question of propriety, when no practical purpose will be served. 'It is a jurisdiction', said Chief Justice Russel, 'to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt', and he insists that the law ought not to be 'astute' in this class of cases. Mr. Justice Stephen went even further and urged that it 'ought to be used as seldom as possible, and almost entirely with reference to the interests of justice.' In Aswini Kumar v. Arabinda Bose AIR 1953 SC 75 , Justice Mahajan speaking for the Court said the same thing. He said that it is not the practice of the Supreme Court to issue such rules except in very grave and serious cases and it is never over sensitive to public criticism. A strong Board of the Privy Council in the year 1899 considered this jurisdiction as necessary only for courts in small colonies, consisting of coloured population for preserving the dignity and respect for courts. Lord Morris said on behalf of the Board that courts should leave to public opinion attacks or comments derogatory or scandalous to them. (See McLeod v. St. Aubyn) 1899 AC 549. 33. The court by its pronouncement today is interfering with free trade in ideas and their competition in the market and to that extent with democratic process. We must be aware of the danger of ourselves sitting in judgment on the truth of the allegations in the statement against judges and courts. We should leave it to the people of this country to decide whether the system of administering justice in courts has the defects alleged and requires change. A statement that judges in this country have bias towards a particular class is insusceptible of exact determination by judicial process; therefore, prudence and propriety require that we should leave its determination to the democratic forum. In a democracy the basic assumption is that the best test of truth of ideas in relation to public affairs is the acceptance by the people of them after competition in the market with other ideas. In a democracy the basic assumption is that the best test of truth of ideas in relation to public affairs is the acceptance by the people of them after competition in the market with other ideas. If dissemination of truth in respect of public affairs is to the benefit of the public and if truth is a defence in proceedings for contempt committed by scandalising a court as assumed by B. K. Mukherjea J , in Ramakrishna Reddy v. State of Madras AIR 1952 SC 149 , I do not think, we are the best judges of the truth of the matter because of the nature of the allegations, the possibility of our bias in the matter, and the summary nature of this proceeding. 34. The courts are the guardians of the liberty of citizens in this country and they should never be oversensitive of criticism of themselves. Fletcher Moulton L. J., (whose dissenting judgment was upheld by the House of Lords) in Scott v. Scott 1912 P. 241 at 274 said: "The courts are the guardians of the liberties of the public and should be the bulwark against all encroachments on these liberties from whatsoever side they may come. It is their duty therefore to be vigilant. But they must be doubly vigilant against encroachment by the courts themselves. In that case it is; their own actions which they must bring into judgment and it is against themselves that they must protect the public.' In Pennekamp v. Florida 328 US 331 Justice Frankfurter observed: "Judges should be foremost in their vigilance to protect the freedom of others to rebuke and castigate the bench and in their refusal to be influenced by unfair or misinformed censure. Otherwise freedom may rest upon the precarious base of judicial sensitiveness and caprice. And a chain reaction may be set up, resulting in countless restrictions and limitations upon liberty." 35. In Plutarch's Lives you will find the story of Timoleon who saved his native city of Syracuse from the Carthaginian tyrants. In later years young hot heads used to get in the public assembly and abuse Timoleon as an old fossil. His friends urged him just to say the words, and that would soon silence his detractors. But Timoleon insisted on letting the vituperative youngsters have their say. In later years young hot heads used to get in the public assembly and abuse Timoleon as an old fossil. His friends urged him just to say the words, and that would soon silence his detractors. But Timoleon insisted on letting the vituperative youngsters have their say. "He had taken all the extreme pains and labour he had done, and had passed so many dangers, in order that every citizen and inhabitant of Syracuse might frankly use the liberty of their laws. He thanked the gods that they had granted him the thing he had so oft requested of them in his prayers, which was that he might some day see the Syracusans have full power and liberty to say what they pleased." (See the passage quoted in 'Free Speech in the United States' by Zacharia Chaffee page 565,) I think, Timoleon's attitude might not be a bad one for courts to adopt in our republic where the people have the fundamental right to say what they have to say concerning the governance of the country, including the administration of justice. I hold that the respondent is not guilty of contempt of court and would dismiss the petition. Krishnamoorthy Iyer, J: 1. I have perused the differing views of my learned brethren Raman Nayar, J. and Mathew, J. I agree with the conclusion and generally with the reasoning of Raman Nayar, J. The only justification for my stating the reasons separately is because I differ from the opinion of Mathew, J. 2. The proceeding arises out of a rule issued by this Court on a petition filed by Sri. T. Narayanan Nambiar, Advocate, Tellicherry, Kerala State, who is a member of the Kerala Bar Council and the Bar Council of India, for committing the respondent, who is the Chief Minister of the State and also one of the leaders of the Marxist Party of India, for contempt of Court in view of certain statements made by. him about the judiciary of the land at a news conference held at Trivandrum on 9-11-1967 and which were published in the INDIAN EXPRESS and MATHRUBHOOMI of 10-11-1967. A copy of the Indian Express containing the statements of the respondent is filed as Ext. P1. The statements contained in Ext. P1, which, according to the petitioner, are the most offending ones, are extracted by him in his affidavit in support of the petition. 3. A copy of the Indian Express containing the statements of the respondent is filed as Ext. P1. The statements contained in Ext. P1, which, according to the petitioner, are the most offending ones, are extracted by him in his affidavit in support of the petition. 3. According to the petitioner, the statements attributed to the respondent constitute a serious scandalisation of Courts, tend to lower the authority of Courts, destroy the confidence which people have in the administration of justice, interfere with the course of justice, undermine the authority of law and constitute injury to the public by tending to create an apprehension in their minds regarding the integrity, ability or fairness of the Judges and by deterring actual and prospective litigants from placing complete reliance upon Courts' administration of justice and the statements also create embarrassment in the mind of the Judges in the discharge of their official duties in a strict and unhesitant manner. The charges served on the respondent under R.4(b) of the Rules dated 2-7-1965 to regulate proceedings for contempt of Subordinate Courts and the High Court are stated thus: "1. That the respondent made a statement at the news conference held on 9-11-1967 at Trivandrum, a summary of which was published in the Indian Express of 10-11-1967. marked as Ext. P1. The entire statement is derogatory to the dignity and prestige of the judiciary of this State as well as of the rest of India and amounts to scandalising the Judiciary. 2. That the statement is not a fair criticism of any particular judgment or of any particular public conduct of any individual Judge, but a wholesale condemnation of the Judiciary as a whole with a view to lower its prestige, dignity, character and usefulness. 3. That the statement is meant as a piece of propaganda to incite the masses against the judiciary and destroy the respect for and the confidence in it as a preliminary to the revolution envisaged by Karl Marx and Engels. 4. That the method adopted for its publication was calculated to give it the widest publicity possible. 5. 3. That the statement is meant as a piece of propaganda to incite the masses against the judiciary and destroy the respect for and the confidence in it as a preliminary to the revolution envisaged by Karl Marx and Engels. 4. That the method adopted for its publication was calculated to give it the widest publicity possible. 5. That the statement contains a challenge to the Supreme Court and the High Court to take action against the respondent so that the people may think that in case no action is taken the Supreme Court and the High Court are afraid of him and in case action is taken he may be acclaimed as a hero who has defied the highest Courts in the land. 6. That the following portions of his statement as published in the Indian Express are particularly offending: (a) Marx and Engels considered the Judiciary as an instrument of oppression and even today when the state setup has not undergone any change. (b) Judges are guided and dominated by class hatred, class interests, class prejudices, and where the evidence is balanced between a well dressed pot bellied rich man and a poor ill dressed and illiterate person the Judge instinctively favours the former. (c) His party had always taken the view, the Chief Minister said, 'that judiciary is part of the class rule of the ruling classes. And there are limits to the sanctity of the judiciary. The judiciary is weighted against workers, peasants and other sections of the working classes and the laws and the system of judiciary essentially serve the exploiting classes". (d) We hold the view that they are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred and class prejudices. In these conditions we have not pledged ourselves not to criticise the judiciary or even individual judgments. (e) The High Court and the Supreme Court can haul me up, if they want." 4. In response to the rule issued, the respondent has filed a counter affidavit. Though he states therein that the summary of his statements published in Ext. P1 is incomplete in some respects, he admits that it is substantially correct and it conveys the ideas which he wanted to give expression to when he dealt with the subject in the press conference. Though he states therein that the summary of his statements published in Ext. P1 is incomplete in some respects, he admits that it is substantially correct and it conveys the ideas which he wanted to give expression to when he dealt with the subject in the press conference. While denying the charge of contempt of Court levelled against him, he stated his case in the counter affidavit thus: "On the other hand, I submit that I bad made a fair criticism of the system of judicial administration with a view to making it conform to our peoples' cherished objective of a really democratic, egalitarian society moving along the path of socialism. I further submit that such a criticism of the system of judicial administration, educating the people on the fundamental defects of the system as it obtains today, is not only my right but also my duty as a citizen of India, as the active worker of one of the political parties functioning under the Parliamentary democratic setup in our country, as a legislator of some standing and as the leader of the House in the State Legislature now." (Paragraph 4). xxx xxx xxx "Criticism of the Judiciary as a system cannot constitute contempt of court any more than the criticism of the Legislature can be construed as an offence against the privileges of the House. Demanding fighting for, educating the people on the necessity of, bringing about whatever changes one considers necessary in the system of executive administration, the legislative processes and the judicial administration, is the right and duty of all public workers who are interested in the continuous rectification of the mistakes that have crept or are creeping into the system. Such a basic criticism of the system therefore comes within the purview of fair criticism which the complainant himself admits 'a citizen is entitled to exercise'." (Paragraph 6). xxx xxx xxx "As is known to Honourable Court and as is acknowledged by the complainant himself. I belong to a particular political party which has its own views about the State structure in our country. Our party has never concealed those views. It was after wide public discussion that our party came to its conclusions on the character of India's State structure. I belong to a particular political party which has its own views about the State structure in our country. Our party has never concealed those views. It was after wide public discussion that our party came to its conclusions on the character of India's State structure. Those conclusions have been summed up in Chap.5 of the Programme of the Communist Party of India (Marxist), adopted in November 1964 and published in several editions in all the languages of India. An extract of that particular chapter of the said programme is produced herewith marked as Ext. R1. A study of that chapter will show that, in making my statement at the Press Conference, I was paraph raising and elaborating the content of para 65 of the Programme of my party." (Paragraph 8) "A passage which closely resembles my party's assessment of the judiciary finds a place in the programme of the other Communist Party of India (Popularly known as the Right Communist Party) as well. I may be permitted to quote that passage here: "The judiciary, which is an important organ of state power, is weighted against workers, peasants and other sections of the working people. The laws, procedures and the system justice, though holding the rich and the poor equal and alike in principle, essentially serve the interests of the exploiting classes and uphold their class rule. Even the bourgeois democratic principle of separation of the judiciary from the executive is not adhered to and the judiciary becomes subject to the influence and control of the latter." (Paragraph 9). xxx xxx xxx "Criticisms of the view taken by the judiciary is thus inherent in the democratic system where the will of the people as interpreted by their elected representatives is supreme. No political party will allow this right of criticism to be curbed in the name of 'dignity of the courts'. But there is one difference between my party and the other parties who subscribe to the theory of Marxism Leninism on the one hand and the parties which do not subscribe to Marxism Leninism. The former hold that the State as a whole and therefore every arm of the State Legislature, Executive and the Judiciary is the instrument of the dominant class or classes so long as society is divided into exploiting and exploited classes. That is way States in human history have been classified slave, feudal, bourgeois, etc. The former hold that the State as a whole and therefore every arm of the State Legislature, Executive and the Judiciary is the instrument of the dominant class or classes so long as society is divided into exploiting and exploited classes. That is way States in human history have been classified slave, feudal, bourgeois, etc. The social class relations existing in society master slave, landlord serf, and capitalist labour relations make it necessary for the exploiting minority to keep the exploited majority under subjection and for this purpose create such coercive instruments as the military, police, prisons, courts, permanent bureaucracy, and soon. These coercive instruments (whose totality is the State) are therefore the instruments the exploiting classes created for the purpose of preventing the exploited majority from overthrowing the rule of the exploited minority. Such a coercive instrument (the State) did not exist in ancient society where there was no division between the exploiters and the exploited. That society is called Primitive Communism, With the fall of capitalist society followed by an intermediary stage of socialism where the former exploited majority will create its own coercive instrument against their former exploiters the proletarian States based on the alliance between the working class, peasantry and other toiling classes, a classless society will once again emerge. This is called Modern as opposed to Primitive) Communism That is why Lenin, the most prolific and clear headed writer on the Marxist theory of State, has characterised the modern (Bourgeois) Parliamentary democracy as a system which is the most democratic in form, but in its content the most perfect organ of class oppression." (Paragraph 16). "This is a theory which is subscribed to by no political party or group except those who base themselves on Marxism Leninism. Every Marxist Leninist is therefore obliged, as a matter of duty, out of loyalty to his principles, to continuously educate the exploited majority of the people on the reality of class oppression behind the veil of the bourgeois slogans of liberty, equality, fraternity, democracy (and in Congress run India such slogans as the socialist pattern, secularism, etc.,) .........." (Paragraph 17). Every Marxist Leninist is therefore obliged, as a matter of duty, out of loyalty to his principles, to continuously educate the exploited majority of the people on the reality of class oppression behind the veil of the bourgeois slogans of liberty, equality, fraternity, democracy (and in Congress run India such slogans as the socialist pattern, secularism, etc.,) .........." (Paragraph 17). xxx xxx xxx "The position in short therefore is: we are trying our best to so utilise the rights guaranteed to our people under the Constitution adult suffer age, freedom of speech and organisation, opportunity to form political parties, and participate in the parliamentary democratic process and so -- on as to bring about fundamental changes in the (economic as well as political) power structures ......." (Paragraph 21). "Such being our fundamental approach to the State as a whole, our approach to the judiciary is also guided, firstly, by a scrupulous adherence to the principle that the verdict given by the courts should be respected in individual cases to the extent that they are the laws of the land until they are changed by the Legislature; Secondly, scrupulously refraining from casting reflections on individual judgments, attributing motives to them and so on, except in accordance with the procedures laid down in the Constitution and in various rules and regulations such as impeachment of Supreme and High Court Judges provided for in the Constitution, petition for the transfer of a particular case from a particular court for reasons stated, and so on; Thirdly, making such criticism of the judicial system and the way in which judicial verdicts are in reality going against the spirit of legislations adopted by the representatives of the people; Fourthly and lastly, continuously educating the working people that the entire State system including the judiciary is an instrument created and perfected by the ruling exploiting classes against the exploited majority." (Paragraph 22). 5. It is not necessary to extract any other portions of the counter affidavit filed by the respondent as, in my view, they are not relevant for the purpose. 5. It is not necessary to extract any other portions of the counter affidavit filed by the respondent as, in my view, they are not relevant for the purpose. But it is necessary to point out that in Para.23 of the counter affidavit it is asserted by the respondent that his statements come completely under the province of fair criticism of the Judiciary as an institution, he has not transgressed the limits of fair criticism and he has not transgressed the path of bringing courts into contempt and ridicule, challenging any particular judgment, imputing motives to any Judge or Judges in general, or in undermining confidence in the judiciary or judgment which alone would amount to contempt of Court. 6. The petitioner has filed a rejoinder traversing the several averments in the counter affidavit of the respondent, 7. The petitioner appeared and argued the petition in person. The application for intervening filed by the President of the Kerala Advocates' Association was allowed and Sri. K. Velayudhan Nair appeared on behalf of the President and supported the petition. Sri. V. K. Krishna Menon and Sri. T. C. N. Menon appeared on behalf of the respondent. We also heard the learned Advocate General in this connection. 8. The power to commit summarily for contempt of itself and of the subordinate courts has been held inherent in every Court of Record and all the High Courts in India have exercised that power before the Constitution according to well recognised principles governing its exercise under the common law in England. Art.129 and 215 of the Constitution recognise the contempt jurisdiction of the Supreme Court and the High Courts. Art.215 which recognises the power of the High Courts to punish for contempt of itself reads thus: "215, High Courts to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." There cannot therefore be any room for controversy regarding the jurisdiction of this Court to punish summarily for contempt of itself. Rightly therefore no objection was raised at the Bar questioning the power of this court to punish for contempt of itself. 9. The Contempt of Courts Act XXXII of 1952 consisting of only four sections defines and limits the powers of High Courts in punishing contempt of Courts. Rightly therefore no objection was raised at the Bar questioning the power of this court to punish for contempt of itself. 9. The Contempt of Courts Act XXXII of 1952 consisting of only four sections defines and limits the powers of High Courts in punishing contempt of Courts. The Act does not create any power to punish for contempt but recognising the existence of such power seeks merely to define and limit them. S.3 provides for the power of High Court to punish contempts of Subordinate Courts; S.4 provides for the limit of punishment for contempt of Court; and S.5 empowers the High Court to try offences committed or offenders found outside jurisdiction. 10. The expression 'contempt of court' has not been defined in the Constitution or the Contempt of Courts Act, XXXII of 1952, or in the General Clauses Act, although it occurs in Art.19(2) of the Constitution. Art.129, 142(2) and Entry 77 of List I of the 7th Schedule deal with contempt of the Supreme Court while Art.215 deals with the contempt of High Courts. Entry 14 of List III in Schedule VII of the Constitution deals with contempt of Courts other than the Supreme Court. The courts in India have been adopting the rules of the English common law interpreting 'contempt of court'. The existing law relating to contempt of Courts in India is essentially of English origin and is derived from the same sources, namely, Mr. Justice Wilmot's undelivered judgment in The King v. Almon 1765 Wilm. 243 and Lord Chancellor Hardwicke's pronouncements in Roach v. Garvan 2 Atk 469. 11. The discussion at the Bar therefore turned to finding out the true meaning of the term 'contempt of court' based on judicial pronouncements both in India and in England and the impact of Art.19(1) of the Constitution read with Art.19(2) thereof on the law in relation to contempt of courts. It is indeed difficult to give a comprehensive and complete definition of 'contempt of court'. Blackstone in his commentaries, Vol. IV, pages 296-297, specifies some of them. It is indeed difficult to give a comprehensive and complete definition of 'contempt of court'. Blackstone in his commentaries, Vol. IV, pages 296-297, specifies some of them. According to the learned author: "Some of these contempts may arise in the face of the Court; as by rude and contumelious behaviour; by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbances whatever; other's in the absence of the party; as by disobeying or treating with disrespect the queen's writ, or the rules or process of the Court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the Court, or of the Judges acting in their judicial capacity; by printing false accounts, or even true ones, 'in defiance of the prohibition of the court* of causes then depending in judgment; and by anything, in short, that demonstrates a gross want of that regard and respect, which when once Courts of justice are deprived of, their authority, so necessary for the good order of the kingdom, is entirely lost among the people." 12. The Shaw Cross Committee in England appointed by the International Commission of Jurists headed by Lord Shaw Cross observed: "Not the least of the difficulties in this field (definition) is that contempt, being a growth of the common law, has no one authoritative definition or limitation; nor has it even been possible satisfactorily to classify the different kinds of contempt " (A Report by Justice Contempt of Court Page 4.) In the Report of the Sanyal Committee on Contempt of Courts dated February 1963 it is stated: "We have not recommended a definition of the expression 'Contempt of Court' not only because of the futility of an imprecise definition but also because in the public interest there should be sufficient elasticity in the application of this concept so as to safeguard the fair and free administration of justice". (Page 31) Though the Committee furnished a draft bill in 1963 to define and limit the powers of courts in punishing contempt of Courts and to regulate their procedure in relation thereto, nothing further seems to have been done. 13. Justice Niyogi of the Nagpur High Court, in Talhara Cotton Ginning Company Ltd. v. Kashinath Gangadhar Namjoshi ILR 1940 Nag. (Page 31) Though the Committee furnished a draft bill in 1963 to define and limit the powers of courts in punishing contempt of Courts and to regulate their procedure in relation thereto, nothing further seems to have been done. 13. Justice Niyogi of the Nagpur High Court, in Talhara Cotton Ginning Company Ltd. v. Kashinath Gangadhar Namjoshi ILR 1940 Nag. 69 observed: "It is indeed difficult and almost impossible to frame a comprehensive and complete definition of contempt of Court. The law of contempt covers the whole field of litigation itself. The real end of a judicial proceeding, Civil or Criminal, is to ascertain the true facts and dispense justice. ....... Anything that tends to curtail or impair the freedom of the limbs of the judicial proceeding must of necessity, result in hampering the due administration of law and in interfering with the course of justice." The definition of 'contempt of court' by Oswald which has been quoted with approval by the Supreme Court in Pratap Singh v. Gurbaksh Singh AIR 1962 SC 1172 at 1177, read thus: "To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation." (Oswald's Contempt of Court, 3rd Edition, page 6.) 14. The general concept of contempt is well understood and indicated in several English and Indian decisions. It is therefore necessary to examine them briefly. Lord Chancellor Hardwicke in Roach v. Garvan 2 Atk. 469, made the following classical statement classifying contempt into three different types: "There are three different sorts of contempt. The kind of contempt is, scandalising the court itself. There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court; in prejudicing mankind against persons before the cause is heard." The attempt of the petitioner before us was to bring the case in the first type of contempt categorised by Lord Chancellor Hardwieke 15. According to Lord Halsbury "the origin of the summary jurisdiction in the common law courts is obscure". (Halsbury's Laws of England, Vol. According to Lord Halsbury "the origin of the summary jurisdiction in the common law courts is obscure". (Halsbury's Laws of England, Vol. 8, Page 3, Foot note (1).) The law on the subject is stated in the undelivered opinion of Wilmot, J., in the case of The King v. Almon 1765, Wilm. 243, which it is necessary to reproduce: "The power, which the Courts in Westminister Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court, acted in the face of it, 1 Vent. 1. And the issuing of attachments by the Supreme Courts of Justice in Westminister Hall; for contempts out of Court, stands upon the same immemorial usage as supports the whole fabric of the common law ....... The arraignment of the justice of the Judges, is arraigning the King's justice; it h an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King's justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom." 16. The rule of Wilmot, J., was followed in very many subsequent cases in the English Courts. But in McLeod v. St. Aubyn, 1899 AC 549, Lord Morris remarked that "Committals for contempt of Court by scandalising the Court itself have become obsolete in this country." But in the year 1900 Lord Russell, C. J., speaking in The Queen v. Gray 1900 (2) QB 36 at 40, of a contempt arising out of personal scurrilous abuse of a Judge in a Newspaper observed thus: "I repeat that it is a personal scurrilous abuse of a judge as a judge. We have, therefore, to deal with it as a case of contempt, and we have to deal with it brevi menu. This is not a new fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part. It is a jurisdiction, the history, purpose, and extent of which are admirably treated in the opinion of Wilmot C. J., then Wilmot, J., in his Opinions and Judgments." There are also other subsequent decisions of the Courts in England evidencing the exercise of such jurisdiction and it is not necessary to repeat them. In spite of what Lord Morris said, contempt of Court by scandalising the court itself for summary punishment has been recognised in the common law of England. 17. The earliest decision with reference to the position in India is Surendranath Bannerjee's case L. R.10. I. A. 171. The power of the High Court of Calcutta for punishing summarily for contempt was examined by Sir Baron Peacock when the position was stated thus: "Their Lordships are of opinion that a contempt of the High Court by a libel such as the present, published out of Court when the court is not sitting, is not included in the words 'offences under the Indian Penal Code' although the contempt may include defamation. Such an offence is something more than more defamation, and is of a different character. It is an offence which by the common law of England is punishable by the High Court in a summary manner by fine or imprisonment, or both. That part of the common law of England was introduced into the presidency towns when the late Supreme Court were respectively established by the charters of Justice. The High Courts in the Presidencies are Superior Courts of Record, the offence of contempt, and the powers of the High Court, for punishing it, are the same there as in this country, not by virtue of the Penal Code for British India and the Code of Criminal Procedure, 1882, but by virtue of the common law of England." 18. The jurisdiction of the High Court of Calcutta as Court of Record to deal summarily for contempt was again affirmed in Legal Remembrancer v. Motilal Ghose and others ILR 1913 (41) Cal. 173. The jurisdiction of the High Court of Calcutta as Court of Record to deal summarily for contempt was again affirmed in Legal Remembrancer v. Motilal Ghose and others ILR 1913 (41) Cal. 173. Sir Lawrence Jenkins C. J., said at page 215: "Now this Court is a Court of Record in all its jurisdictions and it thus has power to commit for any contempt in relation to any of those jurisdictions " Mukerjee, J., observed at page 242-243: "Now, it is indisputable mat a Court of Record has authority to punish for contempt ................................................................ This proposition, when applied to cases of contempt of a Court of Record itself, is defended on the ground that the right of every superior Court of Record to punish for contempt of its authority or process must be deemed inherent from the very nature of its organisation and essential to its existence and protection and to the due administration of justice." 19. Even apart from the Chartered High Courts, the other High Courts in India were also exercising the contempt jurisdiction before the Constitution. This is clear from the decision of the Supreme Court in Sukhdev Singh v. Teja Singh, C. J. AIR 1954 SC 186 Bose J., said at page 189; "What we are at pains to show is that apart from the Chartered High Courts practically every other High Court in India has exercised the jurisdiction and where its authority has been challenged each has held that it is a jurisdiction inherent in a Court of Record from the very nature of the court itself " In Motilal Ghose and others In re ILR 1917 (45) Cal. 169 the Calcutta High Court had to consider a case of contempt based on articles published in a newspaper scandalising the High Court and the Chief Justice in his administration thereof. The summary power of court to punish for contempt arising from scandalisation of courts was upheld. 169 the Calcutta High Court had to consider a case of contempt based on articles published in a newspaper scandalising the High Court and the Chief Justice in his administration thereof. The summary power of court to punish for contempt arising from scandalisation of courts was upheld. Mukerjee J., after a very exhaustive review of the case law on the subject observed: "The principle deducible from these cases is that punishment is inflicted for attacks of this character upon Judges, not with a view to protect either the Court as a whole or the individual Judges of the Court from a repetition of the attack but with a view to protect the public, and specially 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 be undermined or impaired. The contention has been advanced, however, that if this be the true reason for the rule, it is necessary to establish, as a matter of fact, that the actual effect of the publication has been an obstruction to public justice, and that, in the absence of such proof, it cannot be held that there has been a contempt of Court. In support of this position, reliance has been placed upon the decisions in R. v. Freeman's Journal 1902 (2) IR 82) and R. v. Dolan (1907 (2) IR 260). The cases mentioned do not support this proposition, which is, on the other hand, negatived by the decisions in R v. Gray (1900 (2) QB 36-40 , Hunt v. Clarke (1889 (58) LJQB 490 at 492), In re. Pall Mall Gazette (1894 (11) TLR 122), Crimvade v. The Cheque Bank, Ltd., (1897 (13) TLR 305); these show that a contempt of Court is committed by libellous attacks on a Judge for what he did judicially, if such attacks are likely, or tend in any way, to interfere with the due administration of justice. As Elliot, J., well puts it in People v. Stapleton (1893 (18) Colorado 568) it would be as reasonable to require proof of actual hindrance in the administration of justice by reason of a libellous attack on a Judge in his judicial capacity, as for a person who has made a violent assault on another to plead that he has committed no offence because be has not succeeded to overcome his victim. It is not only important that the trial of causes shall be impartial and that the decisions of the Courts shall be just, it is equally important that causes shall be tried and judgment rendered without bias, prejudice or improper influence of any kind. He who scandalises the Court or a Judge in relation to a particular litigation, commits an offence, not merely against the rights of those litigants, but also against public justice: In re. Bahama Islands (1893 AC 138, 148). It is a public wrong, a crime against the State, to under take, by libel or slander on the Judges, to impair confidence in the administration of justice. That a party indulges in calumny of the gravest character, and, consequently, does not succeed in his endeavour to shake the confidence of the public in the Court, surely does not alter the quality of his act or make it any the less reprehensible." 20. The significance of the statement of the Judicial Committee in McLeod v. St. Aubyn 1899 AC 549 that contempt by 'scandalising the court itself had become obsolete in England was also considered by Mukerjee, J. in the decision in Motilal Ghose and others In re ILR 1917 (45) Cal. 169. The learned Judge, observed: "It was argued, however, on the authority of the decision of the Judicial Committee in McLeod V. St. Aubynals (1899 AC 549) that committs for contempt of Court by scandalising the Court itself had become obsolete in England. It may be observed here parenthetically that this very decision of the Judicial Committee is an authority for the proposition that, as laid down by Lord Hardwicke in the James Evening Post Case, Roach v. Garvan, (1742 (2) Atk. 469, 471) the publication of scandalous matter in respect of the Court itself is a contempt, and that power summarily to commit for contempt of Court is necessary for the proper administration of justice. I do not read the statement, that committals for contempt of Court by scandalising the Court itself had become obsolete in England, as destructive of the authority of the earlier decisions on the subject. Indeed, the proposition taken literally seems to go too far, and it is significant that in the very next year proceedings were taken in England for contempt of Court in the case of R. v. Gray, (1900 (2) QB 36). Indeed, the proposition taken literally seems to go too far, and it is significant that in the very next year proceedings were taken in England for contempt of Court in the case of R. v. Gray, (1900 (2) QB 36). There can, I think, be no doubt that where the circumstances clearly demand action of this description, the Court will not hesitate to exercise its undoubted power to punish on summary process the contempt of scandalising it and thereby attempting to interfere with the due course of justice.'' 21. In Ambard v. Attorney General, AIR 1936 PC 141 Lord Atkin described the observations of Lord Morris in McLeod v. St. Aubyn 1899 AC 549 as "an observation sadly disproved the next year in the case in The Queen v. Gray 1900 (2) QB 36.'' Lord Atkin again in Debi Prasad v. Emperor AIR 1943 PC 202 observed: "The case of contempt which consists of 'scandalising the Court itself are fortunately rare, and require to be treated with much discretion. In 1899 this Board pronounced proceedings for the species of contempt to be obsolete in this country, though surviving in other parts of the Empire; but they added it as a weapon to be used sparingly and always with reference to the administration of justice, McLeod v. St. Aubyn (1899 AC 549). In In the matter of a Special Reference from the Bahama Islands (1893 AC 138) the test applied by the very strong Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law. In Reg. v. Gray (1900 (2) QB 36) it was shown that the offence of scandalising the Court itself was not obsolete in this country. In Reg. v. Gray (1900 (2) QB 36) it was shown that the offence of scandalising the Court itself was not obsolete in this country. A very scandalous attack had been made upon a Judge for his judicial utterances while sitting in a criminal case on circuit: and it was with the foregoing opinions on record that Lord Russell of Killowen, L. C. J., adopting the expression of Wilmot, C. J , in his opinion in Rex v. Almon (97 ER 94) which is the source of much of the present In won the subject, spoke of the article complained of as 'calculated to lower the authority of the Judge."' Beaumont C. J., in The Government Pleader High Court, Bombay v. Tulsidas Subhanrao Jadhav ILR 1938 Bombay 179 observed: "It was laid down by Lord Russell of Killowen, C. J., in (1900 (2) QB 36) that any act done or writing published which is calculated to bring a Court or a Judge into contempt or to lower his authority is contempt of Court. It is a class of contempt usually referred to as 'scandalising the Court', and the principle on which the Court proceeds in taking notice of that class of contempt is based on the interest of the public and not on the interest of the particular Court or Judge which is attacked. It is in the public interest that confidence would exist in courts of Justice, and if an attack is made upon a Judge, who is not in a position to answer the attack, the authority and prestige of the Judge tends to be lowered in the estimation of the public and that is contrary to the interests of the public." 22. I shall wind up this part of my discussion by saying that there arc several other decisions of the Indian High Courts prior to the Constitution taking the same view and I do not want to burden the judgment by citing them, as they are too many. After the Constitution, the Supreme Court and several High Courts restated the law of contempt in general and in respect of the class of contempt referred to as scandalising the court in particular on identical terms. 23. The Supreme Court in Sukhdev Singh v. Teja Singh C. J., AIR 1954 SC 186 approved the principle stated in K. L. Ganba In re. 23. The Supreme Court in Sukhdev Singh v. Teja Singh C. J., AIR 1954 SC 186 approved the principle stated in K. L. Ganba In re. AIR 1942 Lahore 105 that "the power to fine and imprison for contempt from the earliest history of jurisprudence has been regarded as a necessary incident and attribute of a court, without which it could not more exist than without a Judge" and the statement made in Parashuram Detaram v. Emperor AIR 1945 PC 134 that "this summary power of punishing for contempt should be used sparingly and only in serious cases; it is a power which a Court must of necessity possess;" and considered the power of the High Court under Art.215 of the Constitution. Bose J., pointed out that jurisdiction under Art.215 of the Constitution is a special one whether it is construed as a fresh conferral of power or a continuation of existing powers and is therefore outside the purview of the Criminal Procedure Code. The learned Judge observed: "So far as contempt of a High Court itself is concerned, as distinct from one of a subordinate court, the Constitution vests these rights in every High Court, so no act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority." In Brahma Prakash v. State of U.P. AIR 1954 SC 10 the Supreme Court had to deal with the phase of the law of contempt referred to 'as scandalising the Court itself.' B. K. Mukherjea, J., reviewing the English and the Indian decisions stated: "It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts. It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened." The learned Judge then proceeded to observe: "There are indeed innumerable ways by which attempts can be made to hinder or obstract the due administration of justice in Courts. One type of such interference is found in cases were there is an actor publication which 'amounts to scandalising the court itself an expression which is familiar to English lawyers since the days of Lord Hardwicke: Vide 'in re. Bead and Uggonson', 1742 (2) Atk. 469 at p. 471. This scandalising might manifest itself in various ways, but in substance, it is an attack on individual Judges or the court as a whole with or without reference to particular cases casting unwarranted and defamatory aspersions upon the character or ability of the Judges. Such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair confidence of people in the Courts which are of prime importance to the litigants in the protection of their rights and liberation." In Hira Lal Dixit v. Stale of U. P. AIR 1954 SC 743 at 745, Das, J. observed : "There are innumerable ways to which attempts can be made to hinder or obstruct the due course of administration of justice in Courts. One type of such interference is to be found in cases where there is an act or publication which scandalises the Court itself. One type of such interference is to be found in cases where there is an act or publication which scandalises the Court itself. A situation of that type was considered by this Court in the case of 'Brahma Prakash V. State of U.P. ( AIR 1954 SC 10 ), and the, principles governing a case of that type were discussed and laid down in the Judgment of this Court," The question again came up before the Supreme Court in State of M.P. v. Revashankur AIR 1959 SC 102 and the Court followed Brahma Prakash v. State of U.P. AIR 1954 SC 10 14 and held such conduct is punishable because it impairs the confidence of the people in the Courts which are of prim importance to the litigants in the protection of their rights and liberties Contempt of Court referred to as scandalising the court has been accepted and followed in India by all the courts without any difference both before and after Constitution. The various forms of manifestation of scandalising the Court itself have been summarised in a comprehensive manner by Jaganadhadas, C. J., as he then was, in State v. Editors and Publishers of Eastern Times & Prajatantra AIR 1962 Orissa 38. It has therefore to be held that any act or publication which amounts to scandalising the court itself will amount to contempt of court summarily punishable under the Contempt of Courts Act, 1952 read with Art.215 of the Constitution. 24. I should at this stage mention that the principle is equally well recognised that Judges and Courts are not above fair and reasonable criticism. B. K. Mukherjea, J., in Brahma Prakash's case AIR 1954 SC 10 -13 explained the two primary conditions which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by scandalising the court itself thus: "In the first place, the reflection on the conduct or character of a Judge in reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice .............. In the second place, when attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the Judge and what amounts really to contempt of court." Lord Atk in said in Ambard v. Attorney General AIR 1936 PC 141 at 145 & 146. "No wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the act done in the seat of justice. The path of criticism is a public way: the wrong beaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune." And again observed in DM Prasad v. Emperor AIR 1945 PC 202 that proceedings for this species of contempt (scandalising the court itself) require to be treated with much discretion and should be used sparingly with reference to the administration of justice and "if a Judge is defamed in such a way as not to affect the administration of justice he has the ordinary remedies for defamation if he should feel impelled to use them''. In The Queen v. Gray 1900 (2) QB 36 the Lord Chief Justice of England said: "Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen." Sir John Beaumont, Chief Justice of Bombay, said in The Government Pleader, High Court, Bombay v. Tulsidas Subhanrao, Jadav ILR 1963 Bombay 179: ".......... One has to recognise that in the long run the degree of confidence reposed In the judiciary will depend on the character of judicial work, and confidence cannot be for long artificially engendered by the simple process of stifling criticism. It has been laid down many times and by the highest tribunals that Judges are not immune from criticism, and that fair and reasonable criticism of a case which is finished is not objectionable." 25. A distinction has always been drawn between criticism affecting Judges in their capacity as Judges on the one hand and criticism affecting them in their personal capacity. The position has been well established by a series of Indian decisions that mere personal attacks on Judges will not amount to contempt although it is open to them to seek redress under the general law of defamation. In Ramakrishna Reddy v. State of Madras AIR 1952 SC 149 it was ruled: "A libel attacking the integrity of a Judge may not in the circumstances of a particular case amount to a contempt at all, although it may be the subject matter of a libel proceeding." In Aswini Kumar v. Arabinda Bose AIR 1953 SC 75 , Mahajan, J. observed on an application filed for an action to commit for contempt of the Supreme Court itself: "We would like to observe that it is not the practice of this Court to issue such rules except in very grave and serious cases and it is never over sensitive to public criticism; but when there is danger of grave mischief being done in the matter of administration of justice, the animadversion cannot be ignored and viewed with placid equanimity." In upholding the summary jurisdiction of the High Court to commit for contempt of itself or of the subordinate courts, the above principles and safeguards have been recognized, so that fair and reasonable criticism inherent in every citizen is not in any way hampered or thwarted. 26. Realising this difficulty, the learned counsel for the respondent took up two positions: (1) The prevailing law of contempt of Courts offends Art.14 of the Constitution and is therefore void; (2) Even if the law in relation to contempt of courts is not void, the phase of the law of contempt referred to as 'scandalising the court itself is an unreasonable restriction on Art.19(1)(a) and is therefore not saved by Art.19(2) of the Constitution. I shall now examine these two contentions. 27. Art.14 of the Constitution was invoked for two reasons. The first is that there is no definition of the term 'contempt of Court' either in the Constitution or in the Contempt of Courts Act, 1952, and therefore an uncanalised, arbitrary and unbridled, power is given to the Court to punish for contempt of court. The second reason is that the Judge in contempt cases is both the prosecutor and the Judge and the procedure for punishment therefore offends the principles of natural justice. In my view, these two reasons cannot be accepted to hold that the power is in any way hit by Art.14 of the Constitution: 28. Merely because 'contempt of court' is not defined either in the Constitution or in the Contempt of Courts Act, 1952, the contempt jurisdiction cannot be termed either unreasonable or arbitrary. It was pointed out that what is contempt has to be ascertained only from the case law which is not consistent and one does not know where he stands in view of the new forms and shapes which contempts can take, in the present set up. As I had already stated the term contempt of court is not capable of any precise definition. The meaning of contempt of courts has received well recognised and uniform judicial interpretation. The decisions have also indicated the limits in exercising the special jurisdiction. On the date of the Constitution the term 'contempt of court' has therefore acquired a set meaning in view of the judicial pronouncements of both the Privy Council and the Indian Courts. Rai, J., in Legal Remembrancer v. Bibhuti Bhusan, AIR 1954 Patna 203 pointed out thus: "Thus it is quite clear that the framers of the Constitution had in their mind the well recognised judicial interpretation of the term 'contempt of court' while incorporating it in Art.19(2) and 215 of the Constitution. Similarly, the Constitution has provided for issue of writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari without defining those writs in the Constitution itself. Thus, it is quite clear that the framers of the Constitution considered it unnecessary to define those terms as they all carry a set meaning given to them by well known judicial pronouncements of the English and Indian Courts. Thus, it is quite clear that the framers of the Constitution considered it unnecessary to define those terms as they all carry a set meaning given to them by well known judicial pronouncements of the English and Indian Courts. In my opinion, the Contempt of Courts Act cannot be held nugatory on the ground of absence of a definition of the term 'contempt of court' in that Act." To the same effect are the observations of Narasimham, J., in State v. Editors and Publishers of Eastern Times & Prajatantra AIR 1952 Orissa 318. The learned Judge observed thus: -- "The makers of the Constitution were fully aware that the law relating to contempt of Court in India was mainly case law based on the English Common Law as interpreted by the English Courts and by the Privy Council. .........The Contempt of Courts Act does not define 'contempt of court'. But sub-s.(iii) of S.2 of that Act implies the existence of the offence of 'contempt of court' outside the provision of the Indian Penal Code. In Art.215 of the Constitution the fact that that every High Court as a Court of Record has power to punish contempt of itself was recognised. The contempt of Court contemplated in this Article could not obviously be that class of contempt dealt with in the Criminal Procedure Code, the Indian Penal Code and the Code of Civil Procedure because those three Codes themselves provide the machinery for punishing contempts of that class. The expression 'Court of Record' has got a well recognised meaning in English law and Courts of Record have always power to punish contempt which is not ex facie by summary procedure Prior to the advent of the Constitution, the High Courts of India have been exercising this power and in the Government of India Act, 1935 also the status of High Courts as Courts of Record was recognised in S.220. Therefore when the makers of the Constitution inserted Art.215 in the Constitution recognising the power of a High Court as Court of Record to punish Contempt of itself and when the Contempt of Courts Act, 1926 does not define 'contempt' the obvious inference is that the law relating to contempt as contemplated by them was not the statutory law described in the aforesaid Codes but also the Common law right of every Court of Record recognised in England and applied in India in the various decisions of the High Courts." 29. The grounds for punishing contempt of court by a Court of Record have been so crystallised and catalogued in the several Indian decisions that there is no ambiguity in them The definition of the High Court as a Court of Record in Art.215 of the Constitution has conferred or recognised the grounds vested in a Court of Record for punishing contempt of itself. During the Constituent Assembly Debates (Vol. VIII-378-383 at 382) in relation to Art.129 of the Constitution dr. Ambedkar explained that the words 'Court of Record' were used to define the status of the Court and as to the additional words he observed thus: "As a matter of fact, once you make a court a court of record by statute, the power to punish for contempt necessarily follows from that position. But, it was felt that in view of the fact that in England this power is largely derived from Common Law and as we have no such thing as Common Law in this Country, we felt it better to state the whole position in the statute itself." 30. The summary proceeding for contempt of court no doubt constitutes an exception to the general principle of natural justice that no man ought to be a Judge in his own cause, for the same Judge who has been subject of contempt may try and punish the contemner. Such a procedure has been upheld both in England and in India on the ground of avoidance of delay and the necessity of upholding the prestige of the court in the interests of the administration of justice But the proceeding before us is not based on any ex facie contempt and no objection can be taken on the ground of violation of natural justice on the ground mentioned. The only' condition is that a reasonable opportunity has to be afforded to the contemner to defend himself. It was ruled in Sukhdev Singh v. Teja Singh, C. J. AIR 1954 SC 186 : "The power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record and S.1(2) of the (Criminal Procedure) Code expressly excludes special jurisdictions from its scope. ........ The Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself". That reasonable opportunity is furnished to the respondent by the rules framed by this Court laying down the procedure to be followed in the exercise of the summary jurisdiction. 31. The summary jurisdiction" is given only to the highest Courts; in the States and the persons who are to exercise the jurisdiction are experienced and judicially trained persons, who are expected to follow the principles of law laid down as not to cause any injustice to the contemner. The summary jurisdiction exercisable by the High Court is also subject to judicial review by the Supreme Court. The contention based on Art.14 has therefore to be rejected. 32. I shall now take up the second contention raised regarding the sustainability of the law in relation to contempt of Courts in the light of Art.19(2) of the Constitution. 33. There was a faint attempt by the petitioner to suggest that the words "in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause" in Art.19(2) of the Constitution do not relate to any 'existing law' or do not prevent the State from making any law in relation to contempt of court. In The State v. Editor etc., Matrubhumi AIR 1955 Orissa 36 at 39 the Court observed: "Reading this clause as a whole, there is room from for argument that the sub clause "in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of etc. In The State v. Editor etc., Matrubhumi AIR 1955 Orissa 36 at 39 the Court observed: "Reading this clause as a whole, there is room from for argument that the sub clause "in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of etc. ........", does not relate to the law of contempt of court: for if we take away the words "security of the State, friendly relations with foreign states public order, decency or morality" the remaining portion of this clause does not make good English and conveys no meaning. After omitting this sub clause Clause.(2) of Art.12 would read as follows: "Nothing in sub clause (a) of Clause.(1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law impose; reasonable restrictions on the exercise of the right conferred by the said sub clause ............... in relation to contempt of court, defamation or incitement to an offence." Read in this way, Clause.(2) as I have said, does not sound to be good English and conveys no meaning. Therefore, oneway of reading Clause(2) is that the words "in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause" do not relate to any existing law, or do not prevent the State from making any law in relation to contempt of court, defamation or incitement to an offence," It is however not necessary for the purpose of the present case to decide this point. As the main object is clear, prima facie it is not possible to accept the contention of the petitioner. It therefore follows that the requirement of reasonable restrictions applies to the law in relation to contempt of Court as well. 34. Art.19 of the Constitution guarantees that every citizen shall have the fundamental right of freedom of speech and expression. This right is not absolute, but is subject to the limitations imposed by clause (2) of the Article. It therefore follows that the requirement of reasonable restrictions applies to the law in relation to contempt of Court as well. 34. Art.19 of the Constitution guarantees that every citizen shall have the fundamental right of freedom of speech and expression. This right is not absolute, but is subject to the limitations imposed by clause (2) of the Article. On the date of the Constitution Art.19, clause (2) read as follows: "Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security or tends to overthrow, the State." By the Constitution (First Amendment) Act, 1951, three important changes have been made in this clause. In the first place, any existing law or law to be made in respect of the matters maintained in clause (2) of Art.19 can impose only reasonable restrictions on the right guaranteed under Art.19(1)(a). Secondly, public order has been added to the grounds on which reasonable restrictions may be imposed. Thirdly, the Legislature is also authorised to impose reasonable restrictions in the interests of friendly relations with foreign States. The effect of the amendment of Art.19(2) by the Constitution (First Amendment) Act, 1951 is that if the law in relation to contempt of court amounts to unreasonable restriction on the freedom of speech and expression guaranteed by Art.19(1)(a) it will be void under Art.13(1) of the Constitution. In Golak Nath v. State of Punjab, AIR 1967 SC 1643 the Supreme Court has declared the Constitution (First Amendment) Act, 1951 valid by the application of the doctrine of prospective overruling. 35. The submission of the learned counsel for the respondent was that the law of contempt of court as recognised and followed in India, cannot be accepted after the date of the Constitution, as it imposes an unreasonable restriction on the freedom of speech and expression guaranteed under Art.19(1)(a). In the case before us the reasonableness of the restrictions imposed on the freedom of speech and expression by one phase of the law of contempt referred to as 'scandalising the court itself need alone be considered. In the case before us the reasonableness of the restrictions imposed on the freedom of speech and expression by one phase of the law of contempt referred to as 'scandalising the court itself need alone be considered. The learned counsel for the respondent relied on the rule of 'clear and present danger' adopted by the American Courts and submitted that 'scandalising the court itself does not cause imminent danger to the administration of justice and any law prohibiting the same imposed an unreasonable restriction. 36. Before considering this contention I think it relevant to examine the question whether the law of contempt enunciated by the Indian decisions prior to the Constitution is 'existing law' within the meaning of the term in Art.19(2) of the Constitution. 37. Even after the Constitution (First Amendment) Act, 1951, the Supreme Court found, following the English and Indian decisions that 'scandalising the court itself will amount to contempt, summarily punishable though the question was not specifically adverted to in the light of Art.19(1)(a) and (2) of the Constitution. 38. The question was raised in State v. Editors and Publishers of Eastern Times and Prajatantra, AIR 1952 Orissa 318 already referred to by me in another connection where it was held that the law relating to contempt of court as laid down by the Indian decisions and the English common law in force in India prior to the date of the Constitution can be treated as 'existing law' for the purpose of Art.19(2) of the Constitution. Narasimham, J., said at page 342: "The expression 'existing law' as defined in clause (10) of Art.366 clearly refers to statutory law (both main and subsidiary) and not to case law. It was therefore urged that the existing law relating to contempt referred to in clause (2) of Art.19 was limited to statutory law only and not to case law as administered by the High Courts of India prior to the advent of the Constitution............................................................The definition of 'existing law' in clause (10) of Art.366 undoubtedly refers to statutory law. It was therefore urged that the existing law relating to contempt referred to in clause (2) of Art.19 was limited to statutory law only and not to case law as administered by the High Courts of India prior to the advent of the Constitution............................................................The definition of 'existing law' in clause (10) of Art.366 undoubtedly refers to statutory law. But the opening words of that article expressly say that the said definition cannot be applied in construing the same expression occurring in clause (2) of Art.19 'if the context otherwise requires.' The makers of the Constitution were fully aware that the law relating to contempt of Court in India was mainly case law based on the English Common law as interpreted by the English Courts and by the Privy Council ............................................................... In Art.215 of the Constitution the fact that that every High Court as a Court of Record has power to punish contempt of itself was recognised ..... ........................... ....................................... Therefore when the makers of the Constitution inserted Art.215 in the Constitution recognising the power of a High Court as Court of Record to punish Contempt of itself, and when the Contempt of Courts Act, 1926 does not define 'contempt', the obvious inference is that the law relating to contempt as contemplated by them was not the statutory law described in the aforesaid Codes but also the Common law right of every Court of Record recognised in England and applied in India in the various decisions of the High Courts. If the definition of the expression "existing law' as given in clause (10) of Art.366 is applied in construing that expression occurring in Art.19(2) the result would be that the power of the High Court as a Court of Record under Art.215 would become nugatory and the Contempt of Courts Act would become unworkable I would therefore hold that the definition of 'existing law' in clause (10) of Art.366 should not be applied in construing that expression occurring in clause (2) of Art.19 in so far as it relates to the law of contempt of Court because 'the context otherwise requires'. The existing law in so far as it relates to contempt of Court saved by clause (2) of Art.19 must include not only statutory law but the entire law of contempt as was recognised in India prior to the advent of the Constitution, based on the English Common law and the case law as laid down by the High Courts and Privy Council." Justice Raman Nayar in 1968 KLT 157 took the view that the law of contempt of Court even though not an enacted one is 'existing law' in the sense in which the term is used in Art.372 rather than the meaning given to the term by Art.366(1) of the Constitution and is covered by Art.19(2) subject to the test of reasonableness. 39. It therefore follows that law of contempt of Court as laid down by the decisions of the Indian Courts is 'existing law' to be tested under Art.19(2) of the Constitution. 40. I shall therefore pass on to consider whether the 'existing law' in relation to contempt of Courts referred to as 'scandalising the court itself satisfies the requirements of Art.19(2) of the Constitution. 41. Patanjali Sastri, C. J., laid down the test to ascertain the reasonableness of the restrictions under Art.19(2) in The State of Madras v. V. G. Row AIR 1952 SC 196 in the following manner: "The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict." The expression "reasonable restriction'' in Art.19 of the Constitution was defined in a succinct manner by Mahajan, J., in Chintamanarao v. State of M.P. AIR 1961 SC 118-119. The learned Judge said: "The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The learned Judge said: "The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates." In Virendra v. The State of Punjab AIR 1957 SC 896 -119 S. R. Das, C. J., in considering whether S.2 and 3 of the Punjab Special Powers (Press) Act (38 of 1956), offend Art.19(1)(a) and 19(1)(g) of the Constitution formulated the question for decision thus: "The crucial question must always be: Are the restrictions imposed on the exercise of the rights under Art.19(1)(a) and 19(1)(g) reasonable in view of all the surrounding circumstances? In other words are the restrictions reasonably necessary in the interest of public order under Art.19(2) or in the interest of the general public under Art.19(6)?" In Narendra Kumar v. Union of India AIR 1960 SC 430 , the test of reasonableness for the purpose of Art.19(6) was considered and Das Gupta, J., observed: "In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection. whether the restraint caused by the law is more than was necessary in the interests of the general public." In The Superintendent, Central Prison v. Dr. Lohia AIR 1960 SC 633 the Supreme Court in considering the question how far S.3 of the U. P. Special Powers Act, 1932 satisfies the test of reasonableness under Art.19(2) of the Constitution, observed that the law imposing the reasonable restriction should be one which has a proximate connection or nexus with public order, but not one far fetched, hypothetical or problematical or too remote in the chain of its relation with the object. In State of Uttar Pradesh v. Kaushalliya AIR 1964 SC 416 Subba Rao, J., in considering the question whether the provisions of S.20 of the Suppression of Immoral Traffic in Women and Girls Act (1956) imposed only reasonable restrictions in public interests within the meaning of Art.19(5) of the Constitution observed: "The reasonableness of a restriction depends upon the values of life in a society, the circumstances obtaining at a particular point of time when the restriction is imposed, the degree and the urgency of the evil sought to be controlled and similar others." 42. A review of the above decisions brings out the following principles to decide the question of reasonable restriction embodied in Art.19(2) of the Constitution. The reasonableness of a restriction depends upon the nature of the right alleged to have been infringed. The restriction imposed should not be disproportionate to the benefit sought to be achieved by the imposition of the restriction. It should not be arbitrary or of an excessive nature beyond what is required in the interests of the public and should be the result of intelligent care and deliberation. In determining the reasonableness of a restriction the substantive as well as the procedural aspects of the measure should also be taken into account. There must be a proximate nexus between the restriction and the object sought to be achieved and a remote or fanciful connection between the two is not sufficient. 43. Judged in the light of the above principles, it is clear that the Judge made law of contempt arising out of scandalising the court itself satisfies the reasonable test in Art.19(2). The object of contempt jurisdiction is not for the protection of Judges but to uphold the dignity of the Courts of law and their image in the minds of the public. As Mukherjea, J., pointed out in Brahma Prakah's case AIR 1954 SC 10 conduct arising from scandalising the court itself is punished as contempt for the reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights, and liberties. Mr. J. C. McRuer, Chief Justice, Ontario in 'Criminal Contempt of Court Procedure' (30 Canadian Bar Review (1952) pp. Mr. J. C. McRuer, Chief Justice, Ontario in 'Criminal Contempt of Court Procedure' (30 Canadian Bar Review (1952) pp. 243-44) said:- "The law of Contempt of Court is not a law for the protection of Judges or to place them in a position of immunity from criticism It is a law for the protection of the freedom of individuals. Everyone in a well ordered community is entitled to the protection of a free and independent administration of justice ......... it is for the press to enlighten the public on what has been done in this branch of Government, fairly and firmly to criticise what has been done where criticism appears to be warranted, but never to attempt to influence the Courts of justice or to undermine the faith of those who live under the protection of the law and the impartial authority of courts." In 'Civil and Criminal Aspects of Contempt of Court' (34 Canadian Bar Review (1956) p. 161) Hugo Fischer said: "A Judge hearing a case must not be exposed to fears or apprehensions, litigants must be protected against the possibility that their case will be influenced by matters extraneous to the litigation in which they are engaged and an accused must not be exposed to attempts to arouse public opinion against him. If this is the true purpose of the protection granted to the Courts the dignity of the court is no longer identical with the prestige of the individual Judge of the bench. The protection is designed to ensure freedom from unlawful interference with the due process of law. If this is accepted, we may come to a further conclusion, namely, that the suppression of Constructive Criticism itself constitutes an interference with the due administration of justice." 44. It is in the public interest that confidence should exist in the judiciary of the land. The democratic process for the establishment of a welfare State envisaged by the preamble and the directive principles in the Constitution enunciates the paramount importance of the rule of law and the Supreme Court and the High Courts play a vital role in discharging the task entrusted to them by the Constitution. The most important feature of our Constitution is the provision contained in Art.13(2) providing for judicial review. The life and liberties of the citizens guaranteed by the Constitution have been entrusted to the High Courts and the Supreme Court. The most important feature of our Constitution is the provision contained in Art.13(2) providing for judicial review. The life and liberties of the citizens guaranteed by the Constitution have been entrusted to the High Courts and the Supreme Court. The Supreme Court has repeatedly held that the rule of law is the very foundation of our Constitution. The Constitution has made provisions to make the position of the judiciary of the land independent and entrenched. It is to achieve this purpose that restrictions have been imposed on the Parliament and the State Legislatures by Art.121 and 211 of the Constitution from discussing about the conduct of the Judges. P. B. Gajendragadkar, former Chief Justice of India, in his lectures on Law, Liberty and Social Justice said: "Judicial tradition in this country has consistently imposed on Judges some voluntary restrictions. It has been the uniform convention followed by Judges in this counter that they do not take part in any political debate, or partisan activity or in public discussion of any matters of controversy or debate which are likely to come before them for their decision. Judges realise that the main strength of judicial administration in a democratic country is the confidence which the public in general and the litigating public in particular places in the fairness, impartiality and objectivity of their decisions.'' (Page 13) Subba Rao, C. J. observed in Golak Nath's case AIR 1967 SC 1643 that: "The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits They should function within the spheres allotted to them. Some powers overlap and some are superseded during emergencies. The mode of resolution of conflicts and conditions for supersession are also prescribed. In short, the scope of the power and the manner of its exercise are regulated by law. No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land." 45. The mode of resolution of conflicts and conditions for supersession are also prescribed. In short, the scope of the power and the manner of its exercise are regulated by law. No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land." 45. To achieve the above purpose and object an independent, impartial, efficient and fearless Judiciary is necessary in the land to be guardian of the liberties of the citizens and to act as the bulwark against all encroachments on the freedom of the people. It is only natural therefore that the Constitution has by enacting Art.215 safeguarded against any attempt to bring the authority of the Judiciary of the land into disrespect and disregard. The several limitations imposed by the Judge made law in the matter of the exercise of summary power of contempt jurisdiction for dealing with cases of 'scandalising the court itself without in any way interfering with the right of fair and reasonable criticism only ensure the reasonableness of the restrictions. The existing law of contempt is the result of judicial analysis and scrutiny by the different High Courts in India and the Privy Council extending over a number of years prior to the Constitution and the law has been restated by the Supreme Court after the Constitution. The general principles evolved satisfy that these restrictions are necessary in the larger interests of the public and satisfy the various tests laid down by the decisions of the Indian Courts. 46. The reasonableness of the existing law of contempt was examined by the Sanyal Committee and by the Press Commission of India constituted under the Chairmanship of Sri. G. S. Rajadyaksha. The questions whether the law of contempt developed in India is vague and requires crystallisation and whether it affects the freedom of speech and expression granted by the Constitution were examined by the two Commissions and their reports furnish very valuable information. The Press Commission concluded their report thus: "The Indian press as a whole has been anxious to uphold the dignity of Courts and the offences have been committed more out of the ignorance of law relating to contempt than to any deliberate intention of obstructing justice or giving affront to the dignity of courts. The Press Commission concluded their report thus: "The Indian press as a whole has been anxious to uphold the dignity of Courts and the offences have been committed more out of the ignorance of law relating to contempt than to any deliberate intention of obstructing justice or giving affront to the dignity of courts. As stated before, instances where it could be suggested that the jurisdiction has been arbitrarily or capriciously exercised have been extremely rare and we do not think that any change is called for either in the procedure or in the practice of the contempt of court jurisdiction exercised by the High Court. The Sanyal Committee said: "In the end we feel that it is not desirable in the interests of proper administration of justice that any modification should be made in the general concept of contempt as now well understood. Contempt cannot be defined except by enumerating the heads under it may be classified heads which can never be exhaustive -- and a definition merely incorporating such heads under which criminal contempt or even contempt as a whole is generally classified, would be useless as a definition and is totally unnecessary. An inclusive definition would be wholly unsatisfactory. Anything more precise is impossible." I am not suggesting that the opinions expressed by the Committees are binding on us. 47. The submission made on behalf of the respondent was that the law applied in India prior to the date of the Constitution was based upon the common law in England which was based upon the legal fiction that the King who is the ultimate source of all judicial authority and the Judge is the mouthpiece of the King and the judicial pronouncements are the utterances of the Sovereign. It was pointed out that this principle could hold good so long as India was in the grip of British domination and after 1947 there is a radical change in the situation and it is no longer fair and proper to apply the pre Constitution law in relation to the contempt of courts after the date of the Constitution especially when it interferes with the fundamental right. It was therefore argued that the jurisdiction can be exercised only on the basis of the doctrine of 'clear and present danger' applied by the Supreme Court of America. 48. It was therefore argued that the jurisdiction can be exercised only on the basis of the doctrine of 'clear and present danger' applied by the Supreme Court of America. 48. Two rules have been laid down by the Supreme Court of the United States regarding the interference with the right of free speech and press. The first is the rule of Police power empowering the Legislature of the States to interfere with the right of free speech and press guaranteed by the Bill of Rights. The second is the rule of 'clear and present danger' empowering the courts to interfere. 49. Our Supreme Court has warned against importing both these doctrines in the interpretation of Art.19 of the Constitution. Their Lordships of the Supreme Court pointed out in Collector of Customs v. Sampathu Chetty AIR 1962 SC 316 : "Though the tests of 'reasonableness' laid down by clauses (2) to (6) of Art.19 might in great part coincide with that for judging of 'due process', (under the American Constitution) it must not be assumed that these are identical, for it has to be borne in mind that the Constitution framers deliberately avoided in this context the use of the expression 'due process' with its comprehensiveness, flexibility and attendant vagueness, in favour of a somewhat more definite word 'reasonable' and caution has therefore, to be exercised before the literal application of American decisions". In Babulal Parate v. State of Maharashtra AIR 1961 SC 884 at 890, it was contended that in view of 'clear and present danger' rule the anticipatory action under S.144 of the Criminal Procedure Code offended the reasonable restriction clause in Art.19(2) & (3) of the Constitution. In overruling the contention their Lordships of the Supreme Court stated that: "The argument that the test of determining criminality in advance is unreasonable, is apparently founded upon the doctrine adumbrated in Schenak v. United States, (1919) 249 US 47 that previous restraints on the exercise of fundamental rights are permissible only if there be a clear and present danger. It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under Art.19(1) of the Constitution are not absolute rights but, as pointed out in State of Madras v. V. G. Row, 1952 SCR. It seems to us, however, that the American doctrine cannot be imported under our Constitution because the fundamental rights guaranteed under Art.19(1) of the Constitution are not absolute rights but, as pointed out in State of Madras v. V. G. Row, 1952 SCR. 597: ( AIR 1952 SC 196 ) are subject to the restrictions placed in the subsequent clauses of Art.19. There is nothing in the American Constitution corresponding to clause.(2) to (6) of Art.19 of our Constitution." The expression 'reasonable restrictions' in clause (2) of Art.19 of the Indian Constitution defines the area of encroachment and lays down the standard for the inroad into the freedom of speech and expression guaranteed by the Constitution. In Kingsley Corn. v. Regents of U. of N. Y (1959) 360 US 684 Douglas, J., observed as follows: "If we had a provision in our Constitution for 'reasonable' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible. Judges sometimes try to read the word 'reasonable' into the First Amendment or make the rights it grants subject to reasonable regulation or apply to the States a watered down version of the First Amendment. But its language, in terms that are absolute, is utterly at War with censorship." It will be relevant in this connection to quote from 'Studies in American and Indian Constitutional Law' delivered by Mr. Justice Douglas in July 1955. The learned Judge, after a review of the American law regarding the power of the Federal Courts to punish for contempt by summary action, stated thus: "These rulings curb the power of summary punishment very drastically, saving for the ordinary processes of the criminal law all other contempts by publication. These decisions are distinctly American. They might not fit the environment of other lands, where Judges are more aloof from the community and the bar than they are in America, where the judiciary is removed from the rough and tumble of life, where no judge ever runs for public office. In America 'the law of contempt is not made for the protection of Judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. In America 'the law of contempt is not made for the protection of Judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. This does not mean that the press can dominate a trial or lash the judge without limit. On one side is the wide area of permissible public comment guaranteed by the First Amendment; on the other is the necessity of maintaining fair judicial administration. What newspaper comment crosses the line into the forbidden field is a matter on which judges commonly disagree. The test in America is a severe one. For as I have indicated, the weight of the Court is on the side of public comment and against the use by judges of the summary contempt power." The doctrine of 'clear and present danger' which is considered to be the classic dictum of Justice Holmes was his innovation in the Schenck case (249 US 47 : 63 Law. Ed. 470). That case involved a conviction under the Criminal Espionage Act of June 15, 1917 and the question considered was the legal impact of the First Amendment of the United States' Constitution on the words used. Justice Holmes in his opinion of a unanimous court stated that 'the question in every case is whether the words used are used in such circumstances and are of such a nature as to create 'a clear and present danger' that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree". 50. The submission for the respondent was that the existing law of contempt in India referred to as 'scandalising the court itself' tested in the light of the doctrine of 'clear and present danger' is an unreasonable restriction on the freedom of speech and expression. 51. The historical background of the law of contempt of courts in the United States based on impeachment proceedings against James H. Peck, a federal District Judge which led to the passing of Act of 1831 declaring the law concerning contempts of court has been sketched by Justice Douglas in Nye v. United States (1940) 313 US 33 : 85 Law Ed. 1172. 1172. The Act contains only two sections, the first being "that the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts." The contempt power of the federal courts has therefore been drastically curtailed by the provisions of the statute and any expression of opinion in the decisions of the Supreme Court of the United States based on those provisions will be out of place in interpreting Art.19 of the Constitution. 52. In spite of the Act of 1831, the Supreme Court of the United States in Toledo Newspaper Coy. v. United Stales (1917) 247 US 402, permitted the presiding Judge to punish summarily for contempt if the publication had a 'reasonable tendency' or an 'inherent tendency' to interfere with Justice. This was the law till the year 1940 when a strict interpretation was adopted in Nye v. United States (1940) 313 US 33 : 85 Law Ed. 1172. 53. In Bridges v. California (1941) 314 US 252 : 86 Law Ed. 192, the Supreme Court held in dealing with the question of the power of the State and Federal Courts to punish summarily for constructive contempt for press comments on pending case that 'clear and present danger' to the orderly and impartial administration of justice has to be made out. The substance of the publication reviewed in the said decision is stated thus at page 208: 'After vigorously denouncing two members of a labour union who had previously been found guilty of assaulting non union truck drivers, it closes with the observation: Judge A. A. Scot will make a serious mistake if he grants probation to Matthew Shannom and Kennan Holmes. This community needs the example of their assignment to the jute mill. Mr. This community needs the example of their assignment to the jute mill. Mr. Justice Black expressing the opinion of the majority of the divided court said: "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Justice Black pointed out that the substantive evil sought to be arrested is two fold: disrespect for the judiciary; and disorderly and unfair administration of justice. The learned Judge discarded the first as any evil 'saying to consider it, would be to incite to judges a lack of fairness, wisdom, or honour, which we cannot accept; the assumption that respect for the judiciary can be won by shielding Judges from published criticism wrongly appraises the character of American public opinion. 54. The second ground according to the learned Judge should be restricted to pending litigation and he said that the court must examine 'the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment.' 55. The learned Judge overruled the plea for accepting English Common Law observing: "In any event it need not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press " Mr. Justice Frankfurter, one of the four members who formed the minority, took the view that the majority opinion 'has deprived California of means for securing its citizens justice according to law' and observed: "The dependence of society upon an unserved judiciary is such a common place in the history of freedom that the means by which it is maintained are too frequently taken for granted without heed to the conditions which alone make it possible. The role of courts of justice in our society has been the theme of statesmen and historians and constitution makers. The role of courts of justice in our society has been the theme of statesmen and historians and constitution makers. It is perhaps best expressed in the Massachusetts Declaration of Rights: 'It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.' ... Freedom of expression can hardly carry implications that nullify the guarantees of impartial trials. And since courts are the ultimate resorts for vindicating the Bill of Rights, a State may surely authorise appropriate historic means to assure that the process for such vindication be not wrenched from its rational tracks into the more primitive melee of passion and. pressure. The need is great that courts be criticised but just as great that they be allowed to do their duty ......... Because freedom of public expression alone assures the unfolding of truth, it is indispensable to the democratic process. But even that freedom is not absolute and is not predetermined. By a doctrinaire overstatement of its scope and by giving it an illusory absolute appearance, there is danger of thwarting the free choice and the responsibility of exercising it which are basis to a democratic society. ..... It was urged before us that the words 'reasonable tendency' had a fatal pervasiveness, and that their replacement by 'clear and present danger' was required to state a constitutionally permissible rule of law. The Constitution, as we have recently had occasion to remark, is not a formulary...Nor does it require displacement of an historic test by a phrase which first gained currency on March 3, 1919 ... Our duty is not ended with the recitation of phrases that are the shorthand of a complicated historic process The phrase 'clear and present danger' is merely a justification for curbing utterance where that is warranted by the substantive evil to be prevented The phrase itself an expression of tendency and not of accomplishment, and the literary difference between it and 'reasonable tendency' is not of constitutional dimension ... The question concerning the narrow power we recognise always is was there a real and substantial threat to the impartial decision by a court of a case actively pending before it." 56. In Penpokame v. Florida (1945) 328 US 331 the Court said that the question is one of striking a balance between the desirability of free discussion and the necessity for fair adjudication free from interruption, of its processes. 65B. In Graig v. Harney (1946) 331 US 367 = 91 L Ed. 1546 the publication in question criticised in very strong terms the procedure followed by a Judge and his decision in very strong language. The opinion of the majority Judges stated that freedom of press should not be impaired: "unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice ......... This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one 'who ventures to publish anything that tends to make him unpopular or to belittle him ..." See Graig v. Hecht, 263 US 255, 281, 68 L. Ed. 293, 301, 44 S Ct. 103, Mr. Justice Holmes dissenting. The vehemence of the language Used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat, to the administration of justice. The danger must not be remote or even probable; it must Immediately imperil." The minority Judges held that the publication amounted to contempt of court. In regard to the doctrine of 'clear and present danger' it was observed: "Only the pungent pen of Mr. Justice Holmes could adequately comment on such a perversion of the purpose of his phrase." In later years the application of the 'clear and present danger' test has been much less generous to free speech and press and it has undergone a great revision in meaning. In Dennis v. United States 341 US 494 = 95 L, Ed. 1137, in the five opinions given, there were four interpretations of the phrase 'clear and present danger'. Vinson, Chief Justice adopted Judge Hand's test of clear and probable danger. In Dennis v. United States 341 US 494 = 95 L, Ed. 1137, in the five opinions given, there were four interpretations of the phrase 'clear and present danger'. Vinson, Chief Justice adopted Judge Hand's test of clear and probable danger. The learned Judge observed: "But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallised into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. To those who would paralyse our Government in the face of impending threat by encasing it in a semantic strait jacket we must reply that all concepts are relative." Justice Jackson said: "They proposed 'clear and present danger' as a test for the sufficiency of evidence in particular cases. I would save it, unmodified, for application as a 'rule of reason' in the kind of case for which it was devised. ........Unless we are to hold our Government captive in a judge made verbal trap, we must approach the problem of a well organised, nation wide conspiracy, such as I have described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. I think reason is lacking for applying that test to this case." The same learned Judge (Ju son) in his dissenting opinion in Terminlello v. Chicago (1948) 337 US 1, 36, 37 = 93 L Ed. 1131, 1150, 1151, observed: "Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone. ........ This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. ........ This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." 57. The above will show that the views of the Judges of the Supreme Court of the United States regarding the applicability of the "clear and present danger' in interpreting the First Amendment with reference to freedom of speech and press and to cases of contempt of courts are not at all uniform. In view of the decisions of the Supreme Court of the United States the State and the Federal Courts have been resorting to other methods in an effort to ensure fair trial. The most common method is a postponement of the trial, a change of venue and a careful examination of persons called to function as jury to eliminate any prejudiced person. 58. Further there are very early decision of the Supreme Court of the United States which point out that the Bill of Rights were not intended to lay down any novel principles but simply to embody guarantees and immunities inherited from the English law and which had from time immemorial been subject to certain well recognised exceptions arising from the necessities of the case. Lord Sumner said in Bowman v. Secular Society Ltd. 1917 AC 406, 466-67. "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because the times having changed, society is stronger than before. In the present day reasonable men do not apprehend the dissolution or the downfull of society because religion is publicly assailed by methods not scandalous. In the present day reasonable men do not apprehend the dissolution or the downfull of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future irreligious attacks, designed to undermine fundamental institutions of our society, may come to be criminal in themselves, as constituting a public danger, it a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now. passed away, there is nothing in the general rules as to blasphemy and irreligion, ...... ........ ...................................... which prevents us from varying their application to the particular circumstances of our time in accordance with that experience." I am of the view that the approach to examine the test of reasonableness in Art.19(2) to 19(6) should be on the lines indicated by Lord Sumner. No doubt the Judicial verdict on reasonableness of the restriction should be on an objective basis. I disagree with the plea of the respondent that the reasonableness of the restriction in relation to the law of contempt arising from scandalising the court itself has to be decided in the light of the clear and present danger test. The decisions in Lakhan Singh v. Balbir Singh, AIR 1953 All. 342 . In the Matter of Basanta Chandra Ghosh, AIR 1960 Patna 430, State of Bombay v. "Mr. P." AIR 1959 Bombay 182 and The State v. Editor etc., Mathrubhumi, AIR 1955 Orissa 36, show that some of the other High Courts have taken the same view. 59. It was also urged that with the growth of Indian democracy the existing law of contempt based on the common law of England that vilification of a Judge being tantamount to flouting Kings' authority cannot apply. 59. It was also urged that with the growth of Indian democracy the existing law of contempt based on the common law of England that vilification of a Judge being tantamount to flouting Kings' authority cannot apply. The submission was that in India after the Constitution sovereignty vests in the people and denial of their right to criticise the courts and the Judges will amount to the very usurpation of the sovereign right in the people to comment upon the conduct of the Judges and the courts when it is found that they are functioning against the will of the people. The argument is no doubt attractive and I find it devoid of any legal substance. First of all there is no attempt by the law of contempt to cut down the citizens right of fair and reasonable criticism. 60. The plea itself will have no foundation when it is realised that the object of the law of contempt is not for the protection of individual Judges and Courts but to protect the public. Wills, J., observed in The King v. Davies 1906 (1) KB 32: "What then is the principle which is the root of and underlies the cases in which persons have been punished for attacks upon Courts and interferences with the due execution of their orders? It will be found to be, not the purpose of protecting either the Court as a whole or the individual judges of the Court from a repetition of them, but of protecting the public, and especially those who, either voluntarily or by compulsion, are subject to its jurisdiction, from the mischief they will incur if the authority of the tribunal be undermined or impaired ................................................................. But what possible difference in principle can there be in respect of direct attacks upon Courts or Judges, and of writings, the tendency of which is to deprive the inferior Courts beforehand of the possibility of doing even handed and impartial justice according to the due course of law? To hold that there was a distinction would give colour to the notion, which cannot be too strongly repudiated, that the offended dignity of a particular Court, or of the persons who compose it, is the subject of punishment in such a case. 'The object of the discipline enforced by the Court incase of contempt of Court,' says Bowen LJ. To hold that there was a distinction would give colour to the notion, which cannot be too strongly repudiated, that the offended dignity of a particular Court, or of the persons who compose it, is the subject of punishment in such a case. 'The object of the discipline enforced by the Court incase of contempt of Court,' says Bowen LJ. 'is not to' vindicate the dignity of the Court or the person of the judge, but to prevent undue interference with the administration of justice'. B.K. Mukherjea, J., said in Brahma Prakash v. State of U.P., AIR 1954 SC 10 , that commission of contempt is a wrong done to the public. Even assuming that the legal sovereignly vests in the people, it vests in. them jointly in an abstract sense and so long as Art.215 of the Constitution is in force, it is not open to any one under the pretext of sovereignty to violate the law which is valid under the Constitution and binding on him. 61. It is also necessary to consider another contention raised by the respondent that law of contempt in English common law was built upon the opinion expressed by Wilmot, J., which is not historically accurate. In support of this submission passages from 'The Contempt Power' by Goldfarb were relied on. The learned author observed at page 24: "Legal scholars have more recently, and after thorough historical study, raised serious doubts about Justice Wilmot's conclusions." Such a contention is not possible in view of Art.215 of the Constitution. I do not however think that this aspect of the case should detain me any further that to quote the answer given by Mookerjee, J., Moti Lal Ghose and others, In re (1917) ILR 45 Cal. 169 to a similar question raised. The learned Judge observed: "But the question remains, whether the proposition, that a Superior Court of Record has power to punish summarily for contempt of Court, can appropriately be treated as 'law taken for granted.' I am not unmindful that a learned writer (Mr. John Charles Fox in the Law Quarterly Review, Vol XXIV, 184, 266) has maintained the view that the opinion expressed by Wilmot C. J., in K. v. Almon (1765) Wilmot 243) is not historically accurate. John Charles Fox in the Law Quarterly Review, Vol XXIV, 184, 266) has maintained the view that the opinion expressed by Wilmot C. J., in K. v. Almon (1765) Wilmot 243) is not historically accurate. Let us assume that this criticism is well established on the ancient authorities, and that while originally the Superior Courts of Common Law had jurisdiction to punish only disobedience to the King's writ summarily by fine and imprisonment upon attachment, they had jurisdiction only on indictment bill to punish contempts in facie and other obstructions to the Administration of Justice, such as libelling the Court or the Judge. Let us assume also that the development of the summary jurisdiction to punish contempts has been of slow growth and that the earliest recorded case of libel or slander on the Court or a Judge by a stranger unconnected with the service of process, which was punished summarily by attachment, cannot be traced to a period anterior to 1720, Surely, this cannot but be regarded now as a matter of other than antiquarian interest. We have abundant 'competent authority not irreconcilable to clear legal principle,' in support of the view that a Superior Court of Record does possess the power to punish summarily contempts of Court of the description now before us." 62. My conclusions therefore are: (1) The law of contempt with reference to scandalising the court itself as enunciated by the decisions of the Indian courts and the Privy Council on the date of the Constitution is 'existing law' within the meaning of the term in Art.19(2) of the Constitution. (2) Such 'existing law' is only a reasonable restriction of the right to freedom of speech and expression guaranteed under Art.19(1)(a) and does not violate Art.19(2) of the Constitution. 63. The next and the most important question is whether the statements in Ext. P1 constitute the offence 'of scandalising the court itself or whether they amount only to fair and reasonable criticism. It has to be pointed out that the learned Advocate General submitted that when his attention was drawn to the impugned statement, he called for a report from the respondent and he was satisfied that the statements did not amount to contempt of court. Let me now examine Ext. P1, giving due weight to the opinion expressed by the Advocate General. Let me now examine Ext. P1, giving due weight to the opinion expressed by the Advocate General. 'The course to adopt', as was stated by Mookerjee, J., in Moti Lal Ghose and Others, In re (1917) ILR 45 Cal. 169 is to read the offending articles as they stand and to attach to the words used their natural meaning without the assistance of a laborious commentary. The learned Judge said: "The general rule of interpretation cannot be formulated in more precise terms, because objectionable language may take an infinite variety of form; this much is clear that it is incumbent on the Court, in all cases, to consider the general tone of the writing. The meaning and intent are to be determined by a fair interpretation of the language used and are matters of law for the Court as to whether or not they constitute contempt." It is no doubt true that the respondent stated in Ext. P1 that he did not challenge or even intend to challenge the integrity of individual Judges or cast reflection on the decision of the Courts. 64. According to the respondent, he issued Ext. P1 'as a citizen of India, as the active worker of one of the political parties functioning under the Parliamentary democratic set up in the country, as a legislator of some standing and as the leader of the house in the present State Legislature, to educate the people on the necessity of bringing out those changes in the judicial system which are in keeping with Indian people's aspirations for a democratic egalitarian society. The respondent would also assert that Ext. P1 was issued by him in elaboration of the content of Para.65 of the manifesto of the Marxist Party adopted in November 1964 and published in several editions in all the languages in India. The significance of the statement regarding the publication of the Party's Programme is, to emphasise that what is stated in Ext. P1 has already been published throughout the country and even if there is any encroachment on the right of fair and reasonable criticism, it cannot amount to contempt of court. Some time was spent in the course of the discussion at the bar to bring home to us the political philosophy of the Marxist Party in India. 65. P1 has already been published throughout the country and even if there is any encroachment on the right of fair and reasonable criticism, it cannot amount to contempt of court. Some time was spent in the course of the discussion at the bar to bring home to us the political philosophy of the Marxist Party in India. 65. It was pointed out on behalf of the respondent that according to the conception of State by Marx and Engels, founders of modern scientific socialism, economic considerations should determine the evolution of laws. According to them, there should first be the economic force in society before law is made. The argument pointed out that the philosophy of communism is for a classless society and in societies based on classes, laws enable the 'haves' to keep the 'have nots' in check and the Government and the courts are only the means of such domination. It was submitted that the philosophy of Marx and Engels is 'to introduce planned organisation of social production to ensure the well being and development of all the members of society and bring into existence the proletarian .social revolution which will do away with the division of society into classes and put an end to all forms of exploitation of one section of society by another. State at present is only the organ of the exploiting class to keep the exploited, class in the condition of oppression based on the present method of production. It was also allowed that what we are now having in India is only bourgeois democracy. The plea was that Marxism believes in class welfare, nationalisation of the property, despotism of the proletariat, withering of the State and the ultimate ending in a stateless and classless society. The above philosophy was stressed upon only to show that when the respondent who is a believer therein issued Ext. P1 he was only giving expression to that philosophy as a public man belonging to a particular party and it amounts merely to a declaration of his faith in that philosophy and is not an attack on any particular court or courts in general. A discussion of the political philosophy of the Marxist party of India and how far the respondent is right in preaching the same for others to follow are totally irrelevant for the present purpose. A discussion of the political philosophy of the Marxist party of India and how far the respondent is right in preaching the same for others to follow are totally irrelevant for the present purpose. The respondent would say that his party holds the view that the State as a whole and that every arm of the State legislature, executive and the judiciary is the instrument of the dominant class and it is made clear that this policy is adopted in pursuance of Para.65 of Ext. R1. The counter affidavit also makes it clear that the idea behind Ext. P1 is to picture the Judiciary of the land as an organ of oppression of the so called exploited classes. We are not concerned with the question whether the Constitution aims at securing a society in accordance with the philosophy of any of the political parties functioning in the Union. The purpose and the object of the Constitution is as pointed out by its preamble itself to secure to all its citizens, justice social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity of nation. The way in which this is sought to be achieved is found in the Constitution itself. Apart from making this declaration, the Constitution makes every such idea into justiciable right providing a guaranteed remedy for its enforcement. Part IV of the Constitution contains directive principles of State policy, to enable the Union and the State Governments to mould their policies in accordance with those principles. No doubt these principles are not judicially enforceable. Art.38 which gives a key to the other Articles in that chapter says: "The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life". No doubt these principles are not judicially enforceable. Art.38 which gives a key to the other Articles in that chapter says: "The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life". 'These directive principles' in the words of Gajendragadkar, former Chief Justice of India, "very briefly, but eloquently, lay down a policy of action for the different State Governments and the Central Government, and in a sense, they embody solemnly and recognize the validity of the charter of demands which the weaker sections of the citizens suffering from socio economic injustice would present to the respective governments for immediate relief." (Inaugural address delivered by the Chief Justice on 12th October 1963 on the occasion of the centenary celebrations of the Advocates' Association, Western India, Bombay.) 66. The goal of the Indian Constitution is the creation of a welfare State. A welfare State is explained by K. Subba Rao, former Chief Justice of India, thus in Swarajya, Annual Number, 1968: 'The concept of a Welfare State is comparatively of modern origin. The industrial revolution, two world wars, universal education, adult franchise, shrinking of the world by scientific and technological developments, the spread of humanitarian values, were all responsible for the evolution of this concept. We can understand better what a Welfare States is if we know what is not a Welfare State. It is not a primitive State where might is right and where the law of the jungle prevails. It is not a backward State where democracy and poverty vie with each other. It is not a totalitarian State where with or without prosperity liberties are suppressed. It is not a quasi totalitarian State, differently known as basic democracy, police democracy, people's democracy, guided democracy, etc., where with or without prosperity there is only an illusion of liberty. It is a State where there is prosperity, equality, liberties and social justice, It is a State which caters to the body, mind and the soul." 67. The growth of sociological jurisprudence which is one of the recognised forms of legal philosophy on which the Indian Constitution has been built is stated by Justice Hidayatullah of the Supreme Court in his lectures on Democracy in India and the Judicial Process, delivered in 1965. The growth of sociological jurisprudence which is one of the recognised forms of legal philosophy on which the Indian Constitution has been built is stated by Justice Hidayatullah of the Supreme Court in his lectures on Democracy in India and the Judicial Process, delivered in 1965. The learned Judge observed: "Strictly speaking, sociological jurisprudence and sociology of law were of later growth. The shifting of the focus from the compulsive economic force to the purpose which law must achieve in society is the most significant advance in recent years. If this theory had not reexplained the functions of law, Marxism would have had no answer. The welfare of society through law is the new concept. This resulted in prescriptions addressed to the administrator rather than to the people and the need for constant vigilance to see that the laws fulfil the purpose for which they are made. The interation of law on society and of society on law is the sociology of law. Considered in principle, it leads to the evolution of sociological jurisprudence which is something quite different from general jurisprudence. Jurisprudence deals with the norms of law. Sociological jurisprudence views laws in the setting of society and attempts a reconciliation of the interests of society with those of the individual. This theory permeates our democracy and as our Constitution also subsumes this concept, we shall briefly scan the views of the leading exponents." (Page 46). The Constitution of India therefore purports to establish a welfare State through rule of law and proceeds on the basic formula of individual liberty and freedom and it seeks to harmonise the same with the claims of common or public good. The rule of law is therefore insisted upon by the Constitution itself. Chief Justice Gajendragadkar stated: "It is hardly necessary to emphasise that 'in the context today, the rule of law has to p]ay a vital role. After we gave ourselves the Constitution, we have chosen the democratic way of life and the nation is committed to the task of achieving socio economic equality and the attainment of a Welfare State. Chief Justice Gajendragadkar stated: "It is hardly necessary to emphasise that 'in the context today, the rule of law has to p]ay a vital role. After we gave ourselves the Constitution, we have chosen the democratic way of life and the nation is committed to the task of achieving socio economic equality and the attainment of a Welfare State. In our march towards the ideal thus set up before us by the Constitution, law has inevitably to play a major part; the administration of law and the enforcement of the rule of law are entrusted to the Courts in this country." Subha Rao, Chief Justice, pointed out in Golhk Nath v. State of Punjab AIR 1967 SC 1643 at 1655. "The objective sought to be achieved by the Constitution is declared in sonorous terms in its preamble which reads: 'We the people of India have solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens justice, liberty, equality and fraternity.' It contains in a nutshell, its ideals and its aspirations. The preamble is not a platitude but the mode of its realisation is worked out in detail in the Constitution. The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. Some powers overlap and some are superseded during emergencies. The mode of resolution of conflicts and conditions for supersession are also prescribed In short, the scope of the power and the manner of its exercise are regulated by law. No authority created under the Constitution is supreme: the Constitution is supreme and all the authorities function under the supreme law of the land. The rule of law under the Constitution has a glorious content." Justice Hidayatullah observed at page 1699: "While the world is anxious to secure Fundamental Rights internationally, it is a little surprising that some intellectuals in our country, whom we may call 'classe non classe, after Hegel, think of the Directive Principles in our Constitution as if they were superior to Fundamental Rights. As a modern philosopher (Benedetto Groce) said such people 'do lip service' to freedom, thinking all the time in terms of social justice "with 'freedom' as a by product". Therefore, in their scheme of things Fundamental Rights become only an epitheton ornans. One does not know what they believe in: the communistic millennium of Marx or the individualistic Utopia of Bastiat. To them an amendment of the Fundamental Rights is permissible if it can be said to be within a scheme of a supposed socio economic reform, however, - much the danger to liberty, dignity and freedom of the individual. There are others who hold to liberty and freedom of the individual under all conditions Compare the attitude of Middleton Murray who would have communism provided 'there was universal freedom of speech, of association, of elections and of Parliament'! To such the liberty and dignity of the Individual are inviolable. Of course, the liberty of the individual under our Constitution, though meant to be fundamental is subject to such restrictions as the needs of society dictate. These are expressly mentioned in the Constitution itself in the hope that no further limitations would require to be imposed at any time." 68. The enforcement of the rule of law is essential to bring about a welfare State conceived in the preamble of the Constitution through a democratic process. The judiciary of the land can be conceived only as an organ under the Constitution and not as an instrument of any particular political party in power or any class of society. 69. In the course of the argument I put a question to Sri. T. C. N. Menon, counsel for the respondent, that if anybody were to make a public statement that in view of the allegiance of the respondent, who is now the Chief Minister of the State, to a particular political philosophy the courts in the State are now a days adopting that philosophy in the administration of justice whether it would amount to scandalising the court itself. In giving a positive answer it was pointed out that Ext. P1 will assume a different completion because of the circumstances in which it was made. 70. On a perusal of Ext. P1, I have do doubt, that it amounts to 'scandalising the court itself. In giving a positive answer it was pointed out that Ext. P1 will assume a different completion because of the circumstances in which it was made. 70. On a perusal of Ext. P1, I have do doubt, that it amounts to 'scandalising the court itself. According to the respondent, 'Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set up has not undergone any change it continues to be so'. We were not referred to any book to show that that was the opinion of Marx and Engels. But even if such a statement was made by Marx and Engels, the respondent cannot escape punishment if it amounts to contempt by attributing the same to Marx and Engels. 71. It appears to me that the rest of the statement in Ext. P1 is to establish that the judiciary is only a part of the class rule and thus justify his stand that the judiciary is an instrument of oppression. Ext. PI proceeds: "His party had always taken the view" the Chief Minister said, "that judiciary is part of the class rule of the ruling classes. And there are limits to the sanctity of the judiciary. The judiciary is weighted against workers, peasants and other sections of the working classes and the laws and the system of judiciary essentially serve the exploiting classes. Even where the judiciary is separated from the executive, it is still subject to the influence and pressure of the executive. To say this is not wrong. The judiciary, he argued, was only an institution like the President or Parliament or the Public Service Commission. Even the President is subject to impeachment. After all, sovereignty rested not with any one of them but with the people. Even with regard to judges, confidential records are being kept - why ? The judge is subject to his own idiosyncrasies and prejudices. We hold the view that they are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred and class prejudices In these conditions, we have not pledged ourselves not to criticise the judiciary or even individual judgments". This did not mean, he explained, that they could challenge the integrity of the individual judge or cast reflections on individual judgments, the Chief Minister contended. This did not mean, he explained, that they could challenge the integrity of the individual judge or cast reflections on individual judgments, the Chief Minister contended. He did not subscribe to the view that it was an aspersion on integrity when he said that judges are guided and dominated by class hatred and class prejudices. "The High Court and the Supreme Court can haul me up, if they want". 72. I have no hesitation to say that there cannot be any two opinions regarding the impression that will be created in the minds of the public on a fair reading of the above statement. 73. The passages in Ext. P1 "the judiciary is weighted against workers, peasants, and other sections of the working classes and the laws and the system of judiciary essentially serve the exploiting classes; even where the, judiciary is separated from the executive, it is still subject to the influence and pressure of the executive ...... We hold the view that they (judges) are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred and class prejudices and where the evidence is balanced between a well dressed pot bellied rich man and a poor, illdressed and illiterate person the Judge instinctively favour the former", are, according to me, the more offending statements tending to lower the prestige of the Judges and the judiciary of the land and interfere with the administration of justice. I do not countenance the argument of the respondent that the criticism in Ext. P1 is too general to constitute scandalising the court itself. It will be more appropriate to say, not that the criticism is general, but the condemnation of the judiciary of the land is general. It is a sweeping denunciation of the entire judiciary of the land. I do not accept the position that to constitute: contempt of court referred to as scandalising the court itself, it is necessary that it should be directed to a particular Judge or to a particular Court. In the course of the arguments it was made clear that the judiciary of the land referred to in Ext. P1 is the judiciary functioning in the Union of India. A disparaging attack of all the courts in the land is more damaging to the public than an attack against a particular court or a particular judge. The sting behind Ext. P1 is the judiciary functioning in the Union of India. A disparaging attack of all the courts in the land is more damaging to the public than an attack against a particular court or a particular judge. The sting behind Ext. P1 is attempted to be got over is the counter affidavit and in the course of the arguments, by the submission that Ext. P1 emanates from the respondent in the exercise of his duty and right as a public worker of a particular political philosophy to educate the people on the necessity of bringing about whatever changes one considers necessary in the system of judicial administration in the land and to educate the working people that the entire State system including the judiciary is an instrument created and perfected by the ruling exploiting classess against the exploited majority. It is agreed that the change intended to be brought about, by the respondent, is to achieve the goal of his political philosophy, for which the courts of the land maintaining the rule of law to be enforced under the Constitution, prove to be an obstacle. The teaching that is contemplated in the counter affidavit is to impress the public that the judiciary is an organ not suited to the philosophy of the respondent and this is attempted by picturing the courts in the way suited to the respondent in the mind of the public. The objective under Ext. P1 is not to improve the rule of law through the judiciary of the land functioning under the Constitution. The attempt is not to discuss the merits and the demerits of the judiciary vis a vis the rights and the directive principles under the Constitution. The attempt behind Ext. P1 is not to promote and strengthen the rule of law envisaged by the Constitution The attempt is not to improve the judiciary in the maintenance of the rule of law envisaged by the Constitution. The objective, to my mind, seems to be only to ridicule the judiciary of the land in its attempt to maintain the rule of law under the Constitution and thereby destroy the rule of law. I do not think it necessary to read between the lines in Ext. P1 to come to this conclusion. It is also not correct to say that even constructive criticisms of courts have no bounds. The Cassels case illustrates this. I do not think it necessary to read between the lines in Ext. P1 to come to this conclusion. It is also not correct to say that even constructive criticisms of courts have no bounds. The Cassels case illustrates this. One of the African jurists, Mr. Christian A Cassel, who is a member of the Supreme Court Bar of, Liberia, attended the New Delhi Congress of the, International Commission of Jurists held in 1959. In the conference he read a paper on "The responsibility of the Judiciary and of the Bar for the Protection of the Rights of the Individual in Liberian Society". The paper was published in all the papers in Liberia. The following passage in the paper that he read is alone relevant for my purpose. "In the past, the Bar of Liberia enjoyed an excellent reputation for the fearless defence of the rights of the individual in Liberian society. Today although strides and advances are being made on some fronts in Liberia, the judiciary appears to me to be the weakest link in the Chain." (The Italics is mine,) The Supreme Court of Liberia issued a rule to Mr. Cassel to show cause why he should not be committed for contempt of court for the above passage. Mr. Cassel contended that his thesis was only a bona fide portrayal of the judiciary in the conference in India. The Supreme Court of Liberia did not hesitate to find the above passage contemptuous and in doing so it was observed: "The weakness of the Liberian Judiciary was not a relevant subject to the discussions scheduled for the conference ......... the only reason the counsellor could have had for irrelevantly volunteering discussion on the weakness of the Liberian Judiciary was for the purpose of holding it up to international ridicule. ........ This can only be viewed as a deliberate and intentional attempt to deride the courts of the country and thereby question intentionally their efficiency and judicial usefulness. ........" xx xx xx "......... ........ This can only be viewed as a deliberate and intentional attempt to deride the courts of the country and thereby question intentionally their efficiency and judicial usefulness. ........" xx xx xx "......... But the Supreme Court of Liberia has not in the past and will not now allow improper behaviour against the courts by members of the profession and defiant and disrespectful behaviour to Judges whether at International Conferences or anywhere else, no matter what may be the opinion of some who claim new fangled ideas under the supposed Rule of law.........and we question the patriotism and the professional good intentions of any Liberian lawyer who prefers to take or alleged faults into foreign countries and before International forums and there paint the country and its institutions in the blackest hues, and attempt to drag the good name and honour through the filthiest slime of prejudiced and stilted truths." (The Contempt of Court by V. G. Ramachandran & V. R. Gopalan, 2nd edn., 1967, pp. 792-93). I am mentioning this only as an answer to the respondent's contention that he has not said anything more in Ext. P1 than some of the great jurists But I may at the same time point out that the sentiments conveyed by the speeches and writings of the Jurists and Judges placed before us are diametrically opposite to that conveyed by Ext P1. The several passages read out to us are only pointers to promote the rule of law and are not in the shape of destructive criticisms to destroy the judiciary of the land. The several passages read out to us are only pointers to promote the rule of law and are not in the shape of destructive criticisms to destroy the judiciary of the land. Patanjali Sastri, C. J , in dealing with the question of reasonable restriction under Art.19 of the Constitution observed in The State of Madras v. V. G. Row AIR 1952 SC 196 thus: "In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorising the imposition of the restrictions, considered them to be reasonable:" 74. There was an attempt on behalf of the respondent to evaluate Ext. P1 with the sentiments expressed in the above passage and contend that there is no contempt. The argument in my view has only to be mentioned to be rejected. The observations of Patanjali Sastri C. J., are towards the working of the Constitution and what is sought to be achieved by Ext P1 is just the contrary. The picture of the judiciary drawn in the public mind is that the Judges to say the least are not holding the scales of justice even The oath or affirmation which a Judge has to make and subscribe before entering office is given in the Third Schedule of the Constitution and reads thus: "I, A. B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) ......... do swear in the name of God that ------------------ --------- solemnly affirm I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws." 75. The upshot of the criticism made by the respondent by publishing Ext. P1 is to bring home to the readers that the Judges of the land on account of the motives attributed to them are violating the oath of office in that they are guilty of class hatred and class prejudices and they are amenable to the influence and pressure of the executive. A Judge of a High Court can be removed from office in accordance with the procedure prescribed by Art.218 read with Art.124(4) and (5) of the Constitution. Removal is possible on the ground of proved misbehaviour or incapacity. Any act done by a Judge in violation of the oath of office amounts to misbehaviour. Most of the allegations contained in Ext. P1 if proved will constitute misbehaviour on the part of the Judge 76. If so is it necessary to mention any further reason to show that the statements in Ext. P 1 amount to a scurrilous, scandalous attack made against the judiciary of the land. A well marked attempt to impair the confidence of the public in the courts functioning under the Constitution and in the Judges appointed under the Constitution and in their administering the rule of law established by the Constitution is discernible in Ext. P 1. The statement in question cannot be overlooked merely as a reasonable argument or expostulation against any judicial act. The effect of Ext. P 1 is sufficient to undermine the judiciary in the minds of the public and make them lose faith in the integrity and impartiality of the Judges. There can be no doubt that Ext. P 1 has the tendency of lowering the judiciary in the country as a whole in the public eye. The circumstances under which Ext. P 1 was issued, amply prove that the statements therein are calculated to interfere with due course of administration of justice and law. As was stated in Queen v. Gray 1900 (2) QB 36 the faith of the public in the fairness and incorruptibility of Judges is a matter of great importance. The effect of Ext. P 1 is to destroy the same and is therefore a scandalous attack on the judiciary of the land. A near approach to the case before us is furnished by the decision in Aswini Kumar v. Arabinda Bose AIR 1953 SP 75. The effect of Ext. P 1 is to destroy the same and is therefore a scandalous attack on the judiciary of the land. A near approach to the case before us is furnished by the decision in Aswini Kumar v. Arabinda Bose AIR 1953 SP 75. The article impugned in that decision stated among other things: "............ Politics and policies have no place in the pure region of the law; and court of law would serve the country and the Constitution better by discarding all extraneous considerations, and uncompromisingly observing divine detachment Which is the glory of law and the guarantee of justice." Mahajan, J: held that the article amounted to contempt and observed: "No objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the judges, it not only transgressed the limits of fair and 'bona fide' criticism but had a clear tendency to affect" the dignity and prestige of this Court. The article in question was thus a "gross contempt of court." The rule was discharged in view of the apology tendered and accepted. 77. The respondent's plea that Ext. P 1 is only within the limits of fair and reasonable criticism is based on the contention that it was bona fide and made in good faith, in his public capacity as the leader of the Marxist Party of India and" in view of the very" general character of Ext. P 1 the tendency or possibility of Ext. P 1 to affect the dignity of the courts and integrity of the Judges is only very remote: This was supported by the learned Advocate General. 78. The admission that Ext. P 1 was issued by the respondent also in his capacity as the leader of the State Legislature only aggravates the contempt; On the date of Ext. P 1 he was and he is also now the Chief Minister of the State. I see no escape from the irresistible inference that the cumulative effect of all the circumstances in existences the date of Ext. P 1 is only to prove that it amounts to wanton and deliberate scandalisation of the court itself amounting to gross contempt. The statement in the counter affidavit that Ext. P 1 was made to implement Ext. R 1 only supports my conclusion. 79. P 1 is only to prove that it amounts to wanton and deliberate scandalisation of the court itself amounting to gross contempt. The statement in the counter affidavit that Ext. P 1 was made to implement Ext. R 1 only supports my conclusion. 79. The decision of the Supreme Court in Criminal Appeal 110 of 1960 and of the Bombay High Court in The Government Pleader, High Court; Bombay v. Tulsidas Subhanrao Jadhav ILR 1938 Bombay 179 were relied on in support of the plea of the respondent. Criminal Appeal 110 of 1960 was directed against the decision of the Patna High Court in In the matter of Basanta Chandra Ghosh AIR 1960 Patna 430: Contempt proceedings were taken by the Patna High Court against an advocate of that court and the editor and the printer and publisher of a local daily paper by name "Searchlight''. The publication in the paper was made by the advocate in a public capacity as the Secretary of Indian Public Affairs and it criticised certain statements made by two ministers of the Central Cabinet on the findings of the Law Commission and further stated that "some lawyers who did not make any mark in their profession nor had any visible practice have found their way to the bench." Though the High Court of Patna found contempt only on the passage underlined by me, the Judges of the Supreme Court did not accept the finding of the High Court. Their Lordships of the Supreme Court said: "On the very face of it, the statement was made by the appellant in his public capacity and not with reference to any particular court." Their Lordships then stated: "The statement read as a whole amounts to saying that the Government had not discharged their responsibilities fully and properly in the matter of appointments of High Court Judges. That opinion may be well founded or may be ill founded. That is not the question before us. The only question that we have to determine is whether that sentence read in the context of what has been said above can he said to bring the Patna High Court, or for the matter of that, any particular High Court into contempt. In our opinion, the High Court is in error in coming to the conclusion that it had that effect. In our opinion, the High Court is in error in coming to the conclusion that it had that effect. Judges who have the responsibility of functioning independently and fearlessly have also to be very vigilant about the reputation of the court. But that does not mean that any sidewind of a public statement which may have some remote effect on the susceptibilities of some Judges is necessarily a contempt of Court. The appellant made reference to the opinion freely expressed in recent years to the deterioration all round with particular reference to the judiciary. As an intelligent citizen of the State and as a responsible public man, if he felt it his duty to say openly what he did say in the statement in question, it does not bring him within the reach of the law of contempt." In the Government Header, High Court, Bombay v. Tulasidas Subhanrao Jadhav ILR 1938 Bombay 179, Chief Justice Beaumont in dealing with a speech criticising the courts of justice in the Presidency said:- "In the present case the speech which is the subject matter of the charge does undoubtedly contain matter which shows that the speaker entertains in the popular sense of the word contempt of all Courts of justice. Possibly on the context it might be said that the Courts of Justice to which he is referring are the courts of this Presidency and that the speech should be so limited. But even if the speaker is expressing contempt for all Courts of Justice in this Presidency, he is not making any attack on any particular Judge or comment on any particular case, and, in my opinion, a general expression of opinion hostile to the utility of Courts of Justice is not likely to affect the public, and need not disturb the equanimity of Judges" 80. It was pointed out relying on the above decisions that (1) Ext. P 1 was made by the respondent in his public capacity and not with reference to any particular court. (2) Ext. P1 contains only a general expression of opinion about the utility of courts of justice for the purpose of bringing into existence a State suited to the political philosophy of the respondent. The learned Advocate General submitted that even if a criticism is fair and reasonable it must cast some reflection on the courts. (2) Ext. P1 contains only a general expression of opinion about the utility of courts of justice for the purpose of bringing into existence a State suited to the political philosophy of the respondent. The learned Advocate General submitted that even if a criticism is fair and reasonable it must cast some reflection on the courts. In order that a statement should amount to scandalising the court itself the reflection should be so intensely adverse to undermine the dignity of courts. It was also contended that Ext. P 1 was not malicious, was bona fide and made in good faith. When a statement amounts to scandalising the court itself the question of malice, bona fides and good faith do not arise. They are all circumstances to be taken into account in the mitigation of punishment. The two decisions referred to do not help the respondent, as they can only afford guidance to find out only the principles to decide what is scandalising the court itself and the question whether a particular statement amounts to contempt will depend on facts alone. The Supreme Court was only considering the effect of the statement involved in that case and took the view that the attack on courts was produced only by a sidewind of the statement made and was very remote. In The Government Pleader. High Court, Bombay v. Tulasidas Subhaarao Jadhav ILR 1938 Bombay 179 the learned Judges took the view that the speech was only a general expression of opinion about the utility of the courts in Bombay Presidency interpreting the same in the circumstances in which the speech was made. No motive was attached to the Judges in the statements involved in those decisions. In my view, these two decisions cannot come to the rescue of the respondent. Ext. P1 is a direct attack of the judiciary and the effect of Ext. P1 on the judiciary cannot be said to be merely collateral. In Jugal Kishore v. Sitamarhi Central Cooperative Bank AIR 1967 SC 1494 the facts were that in an appeal filed before the Registrar of Cooperative Societies against the order of an Assistant Registrar certain allegations of mala fides were made against the Assistant Registrar in the memorandum of appeal. P1 on the judiciary cannot be said to be merely collateral. In Jugal Kishore v. Sitamarhi Central Cooperative Bank AIR 1967 SC 1494 the facts were that in an appeal filed before the Registrar of Cooperative Societies against the order of an Assistant Registrar certain allegations of mala fides were made against the Assistant Registrar in the memorandum of appeal. The question arose whether those averments would constitute contempt of court Their Lordships of the Supreme Court held that the allegations amounted to contempt and observed: "Generally speaking 'any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere with or prejudice party litigants or their witnesses during their litigation' amounts to contempt of Court: see Oswald on Contempts P. 6. In order that Courts should be able to dispense justice without fear or favour, affection or ill will, it is essential that litigants who resort to Courts should so conduct themselves as not to bring the authority and the administration of law into disrespect or disregard. Neither should they exceed the limits of fair criticism or use language casting aspersions on the probity of the Courts or questioning the bona fides of their judgments. This applies equally to all Judges and all litigants irrespective of the status of the Judge, i. e., whether he occupies one of the highest judicial offices in the land or is the presiding officer of a Court of very limited jurisdiction. It is in the interests of justice and administration of law that litigants should show the same respect to a Court, no matter whether it is highest in the land or whether it is one of inferior jurisdiction only." In State of Bihar v. K. N. Singh AIR 1965 Patna 360 the High Court of Patna had to consider a statement published characterising the Patna High Court as a limb of the State Government. The Patna High Court took the view that the statement constituted contempt. In Ext. P1, the respondent instead of picturing the judiciary as a limb of the State Government has made it as an organ of exploiting classes and further stated that it is still amenable to the executive influence. In my view, the decision in State of Bihar v. K. N. Singh AIR 1965 Patna 360 should govern the case. 81. In Ext. P1, the respondent instead of picturing the judiciary as a limb of the State Government has made it as an organ of exploiting classes and further stated that it is still amenable to the executive influence. In my view, the decision in State of Bihar v. K. N. Singh AIR 1965 Patna 360 should govern the case. 81. Absence of malice is no plea to a charge of contempt. The emphatic statement of Palles, C. B., in Rex v. Dolam (1907) 2 IR 260 at 284 is: "As to the law applicable to the case there is no doubt. Actual intention to prejudice is immaterial. I wholly deny that the law of this court has been that the absence of an actual intention to prejudice is to excuse the party from being adjudged guilty of contempt of court. If the court arrives at the conclusion, which I have arrived at, that there is a real danger that it will affect the trial, or that absence of intention is to excuse the party from punishment, such a circumstance as that ought no doubt to be taken into consideration in considering the nature of the punishment to be awarded." 82. This was approved in Regina v. Odhams Press Ltd., 1957 (1) QB 73, where it was held that 'Mens rea which means guilty intention is not in any way materia except as to penalty.' The plea of good faith, bona fides and absence of malice has no relevancy at all in deciding the character of the statement alleged to constitute contempt. The learned counsel for the respondent and the learned Advocate General relied on the decision of the Supreme Court in Ramakrishna Reddy's case 1952 SC 149 in support of their contention that what is stated by the respondent in his public capacity is for the benefit of the public and therefore there cannot be any contempt. Ramakrishna Reddy's case arose out of an appeal on special leave against the decision of the Madras High Court on a contempt application. The article which was the subject matter of proceedings attributed charges of corruption against a Sub Magistrate. It is seen from the decision of the Supreme Court that the Madras High Court gave the contemner an opportunity to substantiate his allegations but he failed and admitted that the allegations which he made were only heresay. The article which was the subject matter of proceedings attributed charges of corruption against a Sub Magistrate. It is seen from the decision of the Supreme Court that the Madras High Court gave the contemner an opportunity to substantiate his allegations but he failed and admitted that the allegations which he made were only heresay. In these circumstances, the Madras High Court held that the article was contemptuous and the contemner was convicted. In confirming the conviction B. K. Mukherjee, J. speaking for the court observed: "If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute. The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein" The above observations were relied on to establish that if Ext. P1 is justifiable on the political philosophy followed by the respondent there is no contempt. I do not understand the observations of the Supreme Court to support the respondent. In the concluding portion of the judgment, the learned Judge observed: "As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide even if good faith can be held to be a defence at all in a proceeding for contempt." The same learned Judge (B. K. Mukherjea, J), observed in Brahma Prakash v. State of U.P. AIR 1954 SC 10 at 15: "It may be that pleas of justification or privilege are not strictly speaking available to the defendant in contempt proceedings''. 83. It is therefore clear that the learned Judge in Ramakrishna Reddy's case AIR 1952 SC 149 was only making the observation with reference to the opportunity given to the contemner by the Madras High Court to substantiate the allegations and his failure to take advantage of the same. In my view, it is not possible to give the respondent's interpretation to the observations of B. K. Mukherjea, J. In Ramakrishna Reddy's case. Kania J. said in Hargowandas v. Chimanlal AIR 1942 Bombay 86 at p. 89: "I am not concerned in this case with the motives of the writer. In my view, it is not possible to give the respondent's interpretation to the observations of B. K. Mukherjea, J. In Ramakrishna Reddy's case. Kania J. said in Hargowandas v. Chimanlal AIR 1942 Bombay 86 at p. 89: "I am not concerned in this case with the motives of the writer. I am concerned with the effect which this publication is likely to cause." Harries C. J. pointed out in Superintendent and Remembrancer, Legal Affairs v. M. Manohar AIR 1941 Patna 185: "It has also been laid down that no intent to interfere with the due course of justice or to prejudice the public need be established if the effect of the article or articles complained of is to create prejudice or is to interfere with the due course of justice. Once it is held that words are likely to cause substantial interference with the due course of justice or are likely substantially to prejudice the hearing of a case or the trial of an accused person then the writer of such an article is guilty of contempt whether he intended such a result or not. The question of intention is irrelevant in considering whether the offence has been committed, though, of course, it is a most important matter in considering the appropriate sentence to be imposed. ........ An expression of an intention not to repeat an offence cannot affect the question whether the offence committed is a serious one requiring action on the part of the Court.'' 84. Leach, C. J. pointed out in Tuljaram v. Governor, Reserve Bank AIR 1939 Madras 257 that in the matter of contempt of court honesty of motive cannot remove it from that category. The very reading of Ext. P 1 shows that it was made without any restraint and the counter affidavit of the respondent not only does not conceal the purpose of the statement but also proclaims that it was issued with the avowed policy of bringing into action Ext. R 1. My finding therefore is that Ext. P 1 amounts to 'scandalising the court itself and the respondent is guilty of contempt of this court. 85. Though in the year 1899 Lord Morris stated that contempt of court by scandalising the court itself has become obsolete in England, the position in India even today is that scandalising the court is not only prevalent but has become a habit. 85. Though in the year 1899 Lord Morris stated that contempt of court by scandalising the court itself has become obsolete in England, the position in India even today is that scandalising the court is not only prevalent but has become a habit. In the course of the argument several statements made by political leaders regarding the judiciary and its role under the Constitution were brought to our notice. We are not called upon to decide whether those statements in any way offend the administration of justice. So long as those statements have not been the subject of any judicial decisions it is not legally possible to measure Ext. P l on the basis of those statements. 86. Then remains only the question of sentence. At one stage of preparing this judgment I was thinking whether an admonition will not do. The contempt arising in the case is not merely of a technical character. There is real prejudice and substantial interference with due course of justice. The statement in question is of a character that cannot be ignored. The contempt in this case is not a trivial one. The attitude taken in the counter affidavit is only to justify the statement in Ext. P 1. That was the position taken up by the respondent's counsel when the case was argued. The counter affidavit (Paragraph 22) only asserts the respondent's right to criticise the judiciary of the land on the lines in Ext P 1. In view of the stand taken by the respondent in the counter affidavit, it cannot be said that Ext. P 1 is the result of any misconception on the part of the respondent arising out of his obligation to his political philosophy and his duty to the judiciary of the land to maintain the rule of law under the Constitution. Mookerjee, J. said in Moti Lal Ghose and Others In re: (1917) ILR 45 Cal. 169 at 239: "No doubt, as Lord Morris observes in Mc Leod v. St. Aubyn, (1899) AC 549, 561, Courts may be satisfied sometimes to leave to public opinion attacks or comments derogatory or scandalous to them. But I do not accede to the argument that it is invariably prudent for the court to assume an attitude of indifference or to institute regular criminal proceedings against the offender. Aubyn, (1899) AC 549, 561, Courts may be satisfied sometimes to leave to public opinion attacks or comments derogatory or scandalous to them. But I do not accede to the argument that it is invariably prudent for the court to assume an attitude of indifference or to institute regular criminal proceedings against the offender. In this connection, reference may appropriately be made to the weighty words of Kent C. J. in Yates v. Lansing (1810) 5 Johnson, N. Y. 282. 'Whenever we subject the established courts of the land to the degradation of private prosecution, we subdue their importance and destroy their authority. Instead of being venerable before the public, they become contemptible; and we thereby embolden the licentious to trample upon everything sacred in society and to overthrow those institutions which have hitherto been deemed the best guardians of Civil liberty". Lord Tenderden, C. J. in Garnett v. Ferrand (1827) 6 B. & G. 611 at 626 said: -- "In the imperfection of human nature it is better, even, that an individual should occasionally suffer a wrong, than that the general course of justice should be impeded and fettered by constant and perpetual restraints and apprehensions on the part of those who are to administer it." 87. Dhavle, J. took the view in Superintendent and Remembrancer, Legal Affairs v. M. Manohar AIR 1941 Pat. 185 that contempt proceedings are not confined to mere prevention of a repetition of the offence by the particular offender. The only guiding principle in the measure of punishment is that it should depend upon the facts and circumstances of each case. The higher interests of society demand that in appropriate cases a deterrent punishment should be imposed. In case of contempt the normal rule will generally be to impose the sentence of imprisonment only if the court is convinced that such an extreme course is necessary to satisfy the ends of justice. No doubt in the counter affidavit the respondent has justified the statements in Ext. P 1. In the course of the argument also his counsel took up the same attitude. There was no expression of any regret on the part of the respondent leaving alone the question of apology. At the time of issue of Ext. P 1 the respondent was the Chief Minister of the State. P 1. In the course of the argument also his counsel took up the same attitude. There was no expression of any regret on the part of the respondent leaving alone the question of apology. At the time of issue of Ext. P 1 the respondent was the Chief Minister of the State. A Government of laws can never be successful if it is manned by persons who break it. But there is the fact that the respondent has unequivocally stated in the counter affidavit that in Ext. P 1 he has not attacked the Judges individually or their decisions and he did not also intend to do so. On a fair reading of Ext. P 1 and the counter affidavit the inference is possible that when the statement was made, the respondent felt that challenging the integrity of the individual Judge or casting reflections on individual judgments would alone constitute contempt. It therefore gives me the impression that when this Court holds that statements like Ext. P 1 amount to scandalising the court itself they will not be repeated. I am therefore of the view, that a sentence of fine will meet the ends of justice in this case. 88. Before parting with this case, I have to observe that the editors and the publishers of the newspapers should exercise a certain amount of restraint in the publication of statements like Ext. P 1. 89. I would therefore allow this petition and hold that the respondent is guilty of contempt of this Court and sentence him to a fine of rupees one thousand and in default to undergo simple imprisonment for a period of one month. The fine will be paid on or before 23-2-1968. By Court: In accordance with the judgment of the majority we find the respondent guilty of contempt of court and sentence him to pay a fine of Rs. 1,000/-; In default of payment on or before the 23rd of this month, to suffer simple imprisonment for one month.