P.N. Duda Vs. V. P. Shiv Shankar & Ors [1988] INSC
106 (15 April 1988)
Citation
: 1988 Latest Caselaw 106 SC
Date
: 15
Apr, 1988
P.N. Duda Vs. V. P. Shiv Shankar
& Ors [1988] INSC 106 (15 April 1988)
Mukharji, Sabyasachi (J) Mukharji, Sabyasachi (J)
Rangnathan, S.
CITATION: 1988 AIR 1208 1988 SCR (3) 547
1988 SCC (3) 167 JT 1988 (2) 102 1988 SCALE (1)728 CITATOR INFO : RF 1989 SC 190
(20)
ACT:
Contempt of Courts Act, 1971- Praying for initiation of
proceedings for Contempt of Supreme Court under section 15(1)(a) and (b)
of-Read with rule 3(a), (b) and (c) supreme Court Contempt of Court Rules,
1975, in respect of a speech delivered at a meeting of Bar Council, reported in
newspapers.
HEAD NOTE:
The respondent No. 1, Shri P. Shiv Shankar, Minister of
Law, Justice and Company Affairs at the relevant time, delivered a speech at a
meeting of the Bar Council of Hyderabad. The petitioner alleged that in that
speech the respondent No. 1 had made statements derogatory to the dignity of
the Supreme Court, attributing to the Court partiality towards affluent people
and using extremely intemperate and undignified language, and that the speech contained
slander cast on this Court both in respect of the Judges and the working of the
Court. He stated that he had approached the Attorney General for India and the
Solicitor General of India to give their consent for initiating Contempt
proceedings. The Attorney General and the Solicitor General having declined to
deal with this prayer of the petitioner, an application for initiation of
Contempt under section 15(1)(a) and (b) of the Act read with Explanation (1)
and Rule 3(a), (b) and (c) of the contempt of Supreme Court Rules, 1975, was
made, wherein Shri P. Shiv Shankar, the Attorney General, the Solicitor General
were made parties. The Court issued notice. In response, Shri P. Shiv Shankar
filed an affidavit, stating that he had delivered the speech on the subject of
accountability of the Legislature, Executive and the Judiciary and had made
comments on the accountability of the three organs and the theoretical
implications thereof, and that he had intended no disrespect to any of the
institutions or its functionaries much less the Supreme Court. It was further
stated that the Contempt petition was not maintainable without the consent of
the Attorney General or the Solicitor General. In the meantime, Shri R.N.
Trivedi, Advocate, filed an application, claiming right to be impleaded as a
party, stating that the Attorney General and the Solicitor General should not
have been made parties to the comtempt petition and that the alleged
non-exercise of the jurisdiction by the AttorneyGeneral and the Solicitor General
had 548 not constituted contempt within the meaning of section 2(c) of the Act.
Declining to initiate the contempt proceeding and
dismissing the petition and disposing of the application filed by Shri R.N.
Trivedi, the Court, ^ HELD: Per Sabyasachi Mukharji, J.:
Before deciding the question whether this application was
maintainable without the consent of the Attorney General or the Solicitor
General, as contended by Dr. Chitale on behalf of Shri Shiv Shankar, and the
question whether the Attorney General and the Solicitor General could be made
parties to the Contempt application and whether their action or inaction was
justiciable at all in any proceeding and, if so, in what proceedings it was
necessary to decide the basic question whether the speech made by Shri P. Shiv
Shankar had amounted to contempt of this Court, or in other words, whether the
speech had the effect of bringing this Court into disrepute. [562H; 563A-B]
Administration of justice and Judges are open to public criticism and public
scrutiny. Judges have their accountability to the society and their
accountability must be judged by their conscience and oath of their office,
that is to defend and uphold the Constitution and the laws without fear and
favour. This the Judges must do in the light given to them to determine what is
right. Any criticism about the judicial system or the Judges which hampers the
administration of justice or which erodes the faith in the objective approach
of Judges and brings administration of justice into ridicule must be prevented.
The contempt of Court proceedings arise out of that
attempt.
Judgments can be criticised, motives of the Judges need not
be attributed. It brings the administration of Justice into deep disrepute.
Faith in the administration of justice is one of the pillars through which
democratic institution functions and sustains. In the free market place of
ideas, criticism about the judicial system or Judges should be welcomed, so
long as such criticisms do not impair or hamper the administration of justice.
This is how the courts should approach the powers vested in them as judges to
punish a person for an alleged contempt, be it by taking notice of the matter
suo motu or at the behest of the litigant or lawyer. [563C-F] In this case, the
Court had examined the entire speech.
Shri P. Shiv Shankar had examined the class composition of
the Supreme Court. His view was that the class composition of any instrument
indi- 549 cated its predisposition, prejudices. This is inevitable.
The intuition more subtle than major premise, on which the
decision will depend, is the pride and the prejudice of a human instrument of a
Judge through which objectively the Judge seeks to administer justice according
to law. So, in a study of accountability, if class composition of the people
manning the institution is analysed, there has to be forewarning about certain
inclination and it cannot be said that an expression or view or propagation of
that view hampers the dignity of the Courts or impairs the administration of
Justice. [565F-H; 566A] It has to be admitted frankly and fairly that there has
been erosion of faith in the dignity of the Court and in the majesty of law and
that has been caused not so much by scandalising remarks made by politicians or
ministers but the inability of the courts of law to deliver quick and
substantial justice to the needy. It is a criticism which judges and lawyers
must make about themselves. We must turn the search light inwards. At the same
time, the Court cannot be oblivious of the attempts made to decry or denigrate
the judicial process, if it is seriously done. This question was examined in
Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R. 497, where it
was held that fair and reasonable criticism of a judgment which is a public
document or which is a public act of a Judge concerned with administration of
justice would not constitute contempt. In fact, such a fair and reasonable
criticism must be encouraged because after all no one, much less Judges, can
claim infallibility. Such a criticism may fairly assert that the judgment is
incorrect or an error has been committed with regard to law or established
facts. But when it is said that the Judge had a predisposition to convict or
deliberately took a turn in discussion of evidence because he had already made
up his mind to convict the accused or has a wayward bend of mind, is
attributing motives, lack of dispassionate and objective approach and analysis
and prejudging of issues, that would bring administration of justice into ridicule.
Such criticism sometime interferes with the administration of justice and that
must be judged by the yardstick whether it brings the administration of justice
into ridicule or hampers administration of justice.
After all, it cannot be denied that pre-disposition or
subtle prejudice or unconscious prejudice or what in Indian language is called
"Sanskar" are inarticulate major premises in decision making process.
That element in decision making process cannot be denied, it should be taken
note of. [569B- G] It has to be borne in mind, as has been said by Banjamin N.
Cardozo in "The Nature of the Judicial Process" that the judge as the
550 interpreter for the community of its sense of law and order must supply
omissions, correct uncertainties and harmonize results with justice through a
method of free decision.
Courts are to "search for light among the social
elements of every kind that are the living force behind the facts they deal
with". [569G-H; 570A] Though at places, intemperate, the statement of the Minister
in this case cannot be said to amount to interference with the administration
of justice and to amount to contempt of court. The Administration of justice in
this country stands on surer foundation. In the speech, it appears that Shri P.
Shiv Shankar was making a study of the attitude of this Court. It was stated
that the Supreme Court was composed of the element from the elite class.
Whether it is factually correct or not is another matter.
In public life, where the champions of the down trodden and the politicians are
mostly from the so-called elite class, if the class composition is analysed, it
may reveal interesting factor as to whether elite class is dominant as the
champions' of the oppressed or of the social legislations and the same is the
position in the judiciary. But the Minister went on to say that because the
Judges had their 'unconcealed sympathy for the haves' they interpreted the
expression 'compensation' in the manner they did. The expression 'unconcealed'
was unfortunate. But this was also an expression of opinion about an
institutional pattern.
Then, the Minister went on to say that because of this the
word 'compensation' in Article 31 was interpreted contrary to the spirit and
intendment of the Constitution. The Constitution had to be amended to remove
this 'oligarchic' approach of the Supreme Court with little or no help. The
interaction of the decisions of this Court and the constitutional amendments
had been viewed by the Minister in his speech, but that was nothing new. This
by itself does not affect the administration of justice. On the other hand,
such a study is perhaps important for the understanding of the evolution of the
constitutional development. Criticisms of judgments is permissible in a free
society. [573C-D; 575E-H; 576A-B,F] There was one paragraph which appeared to
be rather intemperate, it read thus:
"Anti-social elements i.e. FERA violators, bride burners
and whole hordes of reactionaries have found their heaven in the Supreme
Court". [576F-G] That, if true, is a criticism of the laws. The Supreme
Court, as it is bound to do, has implemented the laws and in implementing the
laws it 551 is a tribute to the Supreme Court that it has not discriminated
between persons and persons. Criminals are entitled to be judged in accordance
with law. If anti-social elements and criminals have benefited by decisions of
the Supreme Court, the fault rests with the laws and the loopholes in the
legislation. The Courts are not deterred by such criticisms. [576G-H] Bearing
in mind the trend in the law of contempt as noticed before, as well as in some
of the decisions noticed by Krishna Iyer, J. in the case of Re: S. Mulgaokar,
[1978] 3 S.C.R. 162, the speech of the Minister read in its proper perspective,
did not bring the administration of justice into disrepute or impair
administration of justice. In some portions of the speech, the language used
could have been avoided by the Minister. The Minister perhaps could have
achieved his purpose by making his language mild but his facts deadly. With
these observations, it must be held that there was no imminent danger of
interference with the administration of justice, nor of bringing administration
of justice into disrepute. In that view, it must be held that the Minister was
not guilty of contempt of Court. [577A-C] Another question of law of some
importance had arisen in this matter. Under the Act, in case of criminal
contempt other than a contempt referred to in section 14 which was not this
case, namely a contempt of this Court or a High Court, this Court or the High
Court may take action either on its own motion or on a motion made by the
Advocate- General, which in relation to this Court means the Attorney General
or the Solicitor-General or any other person with the consent of the
Attorney-General in terms of section 15 of the Act. Cognizance for criminal
contempt could be taken by the Court by three methods, namely on its own
motion, or on the motion of the Attorney-General or the Solicitor- General, or
on the motion of any other person with the consent of the Attorney General. The
only course open to a
citizen for initiating proceedings for contempt is to move
for consent of the Attorney General or the Solicitor General. The question is,
does it cast a duty upon the Attorney General or the Solicitor General to
consent to application for grant of such consent and whether the granting or
non-granting of such consent is justiciable by the Court and if so whether the
question of non-granting can be brought up in a rolled application moved by a
person to bring it to the notice of the Court to take action suo motu and at
the same time to consider whether in the same proceedings the action of the
Attorney General or the Solicitor General in granting or not granting consent
can be challenged or it must be always by an independent proceeding. The
consent certainly is linked up with 552 contempt proceedings. In this case, the
Minister had taken the plea that consideration of this case could not be taken
up because there was no consent of the law officers. Did it or did it not tend
to interfere with the due course of judicial proceedings in terms of clause
(ii) of section 3(c) of the Act? The Attorney General and the Solicitor
General, in respect of this Court, occupy positions of great importance and
relevance. The Attorney General is a friend, philosopher, and guide of the
Court (Article 76 of the Constitution). Yet, the Act, vests him with certain
discretions. All statutory discretions are justiciable in a society governed by
the rule of law. This Court is the finder and interpreter of law in cases of
this nature with the assistance of Attorney General, and, in his absence or
inability, the Solicitor General. [577C-H; 578A-C] The petitioner in this case
had approached the Attorney General and the Solicitor General to look into the
matter and accord sanction. The conduct of the respondents Nos. 2 and 3
according to the petitioner, amounted to refusal to exercise jurisdiction
vested in them by law, and, therefore, they were impleaded as parties in the
present proceedings (as necessary and/or proper parties) in order that they
might get an opportunity to justify the stand they had taken in the matter
flowing fr m their refusal to exercise jurisdiction. [580E-G] The question is
whether there is a duty cast upon the Attorney General or the Solicitor General
to consider the question of granting consent in terms of clause (b) of section
15(1) of the Act, and if in fact such consent is not granted, that question can
be considered by the Court. It was not a question of making the Attorney
General or the Solicitor General a party to a contempt proceeding in the sense
that they were liable for contempt, but if the hearing of the contempt
proceedings is better proceeded with by obtaining the consent of the Attorney
General or the Solicitor General and the question of justiciability of giving
the consent is inter-linked on the analogy of order II, Rule I of the Code of Civil
Procedure , which has application to a civil proceeding and not to a
criminal proceeding, it is permissible to go into this question. In the case of
Conscientious Group v. Mohammed Yunus and others, [1987] 3 S.C.C. 89, this
Court went into the reasons given by the Solicitor General declining consent,
and held on examination that such consent was properly refused. This is a
complete answer to the contention that in a contempt petition the grounds for
either giving consent or not giving consent or for not considering the
application for consent are justiciable and that question cannot be gone into
in that proceeding though it must be emphasised in that proceeding that 11 the
Solicitor General was not made a party to the proceeding. In his 553 Lordship's
opinion, it will be more appropriate for an officer of the Court whose action
is being investigated to be made a party in the proceedings, otherwise it would
be violative of the rule of audi alteram partem. Discretion vested in the law
officers of this Court to be used for a public purpose in a society governed by
rule of law is justiciable. It would be more appropriate that it should be gone
into upon notice to the law officer concerned. It is a case where appropriate
ground for refusal to act can be looked into by the Court. It cannot be said
that the refusal to grant consent decides no right and it is not reviewable.
Refusal to give consent closes one channel of initiation of
contempt out of the three different channels, namely,
(1) the
Court taking cognizance on its own motion;
(2) on
the motion by the Attorney General or the Solicitor General; and
(3) by
any other person with the consent in writing of the Attorney General or the
Solicitor General.
In this case, apparently the Attorney General and the
Solicitor General had not moved on their own. The petitioner could not move in
accordance with law without the consent of the Attorney General and the
Solicitor General, though he has a right to move and the third is the Court
taking notice suo motu. But irrespective of that there was the right granted to
the citizen of the country to move a motion with the consent.
Indubitably, cognizance could be taken suo motu by the
Court but the members of the public have also the right to move the Court. That
right of bringing to the notice of the Court is dependent upon consent being
given either by the Attorney General or the Solicitor General, and if that
consent is withheld without reasons or without consideration of that right
granted to any other person under section 15 of the Act, that could be
investigated in an application made to the Court. [581B-H; 582AC; 584C-D] Where
an appeal comes to this Court, which is a judicial decision, the judges who
rendered the decision are not necessary parties. There is no lis between a
suitor and a judge in a
judicial adjudication. But the position is entirely
different where there is a suitor claiming the exercise of a statutory right in
his favour which he alleges is hampered by an official act of a named official
in the Act. In respect of justiciability of that act of the official there is a
lis and if that lis is inter-linked with the proceeding for contempt, there is
warrant for making him party in that proceeding though the prayers and the
notice must be issued differently. The statute gives a right to a suitor to
move the Court in one of the contingencies for contempt or bring to the notice
of the Court the contempt with the advice and assistance of the Attorney
General or the Solicitor General. If such right is not considered on relevant
materials, then, that action is justiciable in the appropriate proceeding for
contempt. [585C-G] 554 Having considered the peculiar facts and circumstances
of this A case and the allegations of bias made against the Attorney general
and the Solicitor General, it appeared that the Attorney General and the
Solicitor General acted properly in declining to deal with the matter and the
Court could deal with the matter on attention being drawn to this Court. In
that view of the matter, the petition failed and the application of Shri
Trivedi was accordingly disposed of.
[588D-E] Per S. Ranganathan, J. (Concurring) The impugned
comments were made by the respondent No. 1 in the course of his key note
address at a seminar on 'Accountability of the Legislature, Executive and
Judiciary under the Constitution of India'. The speech, and, in
particular, some 'sevoury' passages therefrom were highlighted in the Press.
The speech had been made before an audience comprising essentially lawyers,
Jurists and Judges.
It represented primarily an exercise by the speaker to
evaluate the roles of the executive, legislature and judiciary in the country
since its independence and to put forward the theory that, like the executive
and the legislature, the judiciary must also be accountable to the people.
[588F-H; 589A] The petitioner contended that certain passages in the speech
seemed to attribute a sub-conscious partiality, bias or predeliction in the
Judges in disposing of various matters before them and that those comments fell
within the scope of the decision of this Court in the case of E.M. Sankaran
Namboodripad v. T. Narayanan Nambiar, [1970] 2 SCC 325. [589A-B] It was true,
as pointed out by Sabyasachi Mukharji, J.
that there were passages in the speech which torn out of
context might be liable to be misunderstood, but reading the speech as a whole
and bearing in mind the select audience to which it was addressed, his Lordship
agreed with Sabyasachi Mukharji, J., that no contempt had been committed. The
affidavit of the respondent No. 1 should be accepted at its face value that the
speech was only a theoretical dissertation and that he intended no disrespect
to this Court or its functioning. [589D-E] The second aspect of the case on
which arguments were addressed before the Court, related to the procedure to be
followed in such matters. This aspect raised some important issues. [589E-F]
The criminal miscellaneous petition filed by the petitioner purported to be
only "information" u/s 15 (1)(a) and (b) of the 555 Contempt of
Courts Act, 1971 ('the Act'). The petitioner stated that he came to know from a
report in the newspaper that the respondent No. 1, in the course of his speech,
had made certain statements which randered him liable to be proceeded against
for contempt of court, and, appending what was stated to be a full text of the
said speech published in the "Newstime", prayed for initiation of
contempt of court proceedings suo motu under s. 15(1) of the Contempt of Courts
Act, 1971, read with rule 3(a) of the Supreme Court (Contempt of Court) Rules,
1975. Though the respondent No. 1 only, according to the petitioner, was to be
charged with contempt, the petitioner had added three more respondents to the
criminal miscellaneous petition, namely, the Attorney General for India (by
name), the Solicitor General of India (by name) and Sri Ramji Rao, Editor of
"Newstime". The petition raised certain questions of general
importance for consideration to evolve a proper procedure for future guidance
in these matters. [589F-H; 590A-B] The petitioner sought to charge respondent
No. 1 with "Criminal Contempt" under Section 15 of the Contempt of
Courts Act, 1971.
A conjoint perusal of the Act and the rules of the Supreme
Court to regulate proceedings for Contempt of Supreme Court makes it clear that
so far as this Court is concerned, action for contempt may be taken by the
Court on its own motion or on the motion of the Attorney General (or the
Solicitor General) or of any other person with his consent in writing. There is
no difficulty where the Court or the Attorney General chooses to move in the
matter. When a private person desires that such action should be taken, he may
place the information in his possession before the Court, requesting the Court
to take action; or he may place the information before the Attorney General
requesting him to take action; or he may place the information before the
Attorney General requesting him to permit him to move the Court. In this case,
the petitioner alleged that he had failed in the letter two courses, and he had
moved this 'petition' praying that this Court should take suo motu action. On
this 'petition', no proceedings could commence until and unless the Court
considered the information before it and decided to initiate proceedings.
[592F-H;593A-B The form of a criminal miscellaneous petition styling the
informant as the petitioner and certain persons as respondents is inappropriate
for merely lodging the relevant information before the Court under rule 3(a) of
the Supreme Court (Contempt of Court) Rules. The proper title of such a
proceeding should be "In re .. (the alleged contempt)". The direction
given by the Delhi High Court in 556 Anil Kumar Gupta v. K. Subba Rao, ILR 1974
Delhi 1 that " ........ if any information is lodged even in the form of a
petition inviting this Court to take action u/s 15 of the Contempt of Courts
Act or Article 212 of the Constitution, where the informant is not one of the
persons named in section 15 of the said Act, it should not be styled as a
petition and should not be placed before the judicial side.
Such a petition should be placed before the Chief Justice
for orders m chambers and the Chief Justice may decide either by himself or in
consultation with the other judges of the Court whether to take any cognizance
of the information ........ " sets out the proper procedure in such cases
and may be adopted in future as a practice direction or as a rule, by this
Court and the High Court. However, this petition having been filed and similar
petitions having been perhaps entertained earlier in several courts, his
Lordship did not suggest that this petition should be dismissed on this ground.
[593C-H; 594A-B] In this case, apart from filing his information in the form of
a petition, the petitioner had added as respondents to the petition not only
the alleged contemner but three more persons i.e. the Attorney General, the
Solicitor General and Shri Ramoji Rao, Editor of "Newstime". The
Attorney General and Solicitor General were stated to be impleaded in order that
they might get an opportunity to justify their stand in refusing to exercise
their jurisdiction to grant consent to him to enable him to file a petition
under section 15(1) read with rule 3(c), and the fourth respondent was only a
possible witness, stated to be impleaded only to prove the authenticity of the
speech reported in the "Newstime" in the event of a disclaimer of the
respondent No. 1. This could not be done. This petition, as filed, was for
initiating proceeding for contempt only against respondent No. 1. If the
petitioner had any cause of action against the other persons, such persons were
neither necessary nor even proper parties to this petition, because such cause
of action was of a purely civil nature. At best, the petitioner could say that
he was entitled to a writ of mandamus directing the Attorney General and
Solicitor General to discharge their statutory obligation or a writ of
certiorari to quash their decision in case they had unreasonably withheld their
consent to the petitioner's filing a petition. This remedy was to be sought
independently against these persons by a separate writ petition. He could not
seek relief against the Attorney General and the Solicitor General by a
petition mixing up his criminal charge against respondent No. 1 and his civil
grievance against the Attorney General and the Solicitor General. He could not
get over the objection to the maintainability of a petition, i.e. want of
cousent of the Attorney General or the Solicitor General, merely by the device
of adding them as respondents 557 to the petition; no relief was sought against
the Attorney or the Solicitor A General. This petition, if treated as one under
rule 3(c) was not maintainable for want of consent by the Attorney General and
the Solicitor General and had to be dismissed as such. The inclusion of
respondents 2 to 4 as respondents to the petition was totally unjustified, and
if the petition was to be taken as merely laying of information under rule
3(a), the names of respondents 2 to 4 must be struck off from the array of
parties. His Lordship directed accordingly. Notice of the petition should not
have been issued in the form it was issued, to the Attorney General and the
Solicitor General since there was no allegation of contempt and no relief had
been sought against them. [594B- H; 595A-D] The petitioner had submitted that
the Attorney General and the Solicitor General had acted unreasonably in
declining to act in this case. In addition to merely placing the information
with him before the Attorney General/Solicitor General and seeking their
consent to his filing a petition before the Court, he had written a letter
containing a lot of irrelevant matter, whereby while purporting to seek the
consent of the Attorney General Solicitor General, he had simultaneously expressed
his lack of confidence in their judgment and ability to discharge their duties
objectively and impartially. In this situation, the Attorney General/Solicitor
General decided not to exercise their statutory powers at all one way or the
other.
the Attorney General/Solicitor General acted rightly and in
the best traditions of their office by declining to deal with the petitioner's
request. The petitioner had cast aspersions against both the law officers,
doubting their ability to act objectively and this stultified by his conduct
this course indicated by the Statute. [598G-H; 599A- C,F] As to the question
whether, in a case where neither the Attorney General nor the Solicitor General
was in a position to consider a request under section 15(1)(c), the petitioner
could seek the consent of some other law officers, as the Additional Solicitor
General, it was not open to him to seek such consent, as under section 15, the
written consent of only those officers as have been specifically authorised by
the section would be taken note of for entertaining a petition under the
section. [599G-H; 600A-B] Summing up the conclusion- (a) This petition, if
treated as and filed under section 15(1) read with rule 3(a) was not in proper
form, and if treated as one filed under rules 3(b) and 3(c), was not
maintainable as it was not filed by the 558 Attorney General/Solicitor General
or any other person with his consent; [600C] (b) In either event, the
petitioner should not have added to the petition respondents other than the
person, alleged to be guilty of Contempt of Court, and their names should be
deleted from the array of the Parties; [600D] (c) In case the Attorney
General/Solicitor General refuse consent or decline to act, their decision is
not judicially reviewable and a petitioner's remedy is to approach the Court
for action under rule 3(a); [600E] (d) In this case, the Attorney
General/Solicitor General acted properly in declining to deal with the
petitioner's application either way, and [600F] (e) This petition was nothing
more than information under rule 3(a) on which this Court might or might not
take suo motu action and there was no need to initiate proceeding against the
respondent No. I for Contempt of Court. [600F-G] Ambard v. Attorney General for
Trinidad and Tobago, [1936] A.C. 322, 325; E.M. Sankaran Namboodiripad v. T.
Narayanan Nambiar, [1971] 1 SCR 697-(1970) 2 SCC 325; Joseph Loohner v. People
of the State of New York, 49 Lawyers' Edition 195-198 U.S. 1904; Re: Shri S.
Mulgaokar, [1978] SCR 162; New York Times Company v. L.B. Sullivan, 376 U.S.
254; Regina v. Commissioner of Police of the Metropolis, Ex Parte Blackburn,
[1968] 2 W.L.R. 1204; Special Reference No. I of 1964, [1965] 1 S.C.R. 413;
Shri Baradakanta Mishra v. The Registrar of Orissa High Court and another,
[1974] 1 SCC 374; Ram Dayal Markarha v. State of Madhya Pradesh, [1978] 3 SCR
497; Conscientious Group v. Mohammed Yunus and others, [1987] 3 SCC 89 J.T.
1987 (2) 377; National Anthem case, [1986] 3 SCC 615; Vassiliades v.
Vassiliades and others, AIR 1945 P.C. 38; S.K. Sarkar v. V.C. Misra, [1981] 2
SCR 331; C.K. Daphtary and others v. O.P. Gupta, and another, [1971] Suppl.
S.C.R. 76; G.N. Verma v. Hargovind Dayal and others, AIR 1975 Allahabad 52; B.
K. Kar v. The Chief Justice and his Companion Judges of the Orissa High Court
and others, [1962] 1 SCR 319; Attorney General v. Iyimes Newspapers Ltd.,
[1973] 3 All. E.R. 54; Indian Express Newspapers (Bombay) Pvt. Ltd. and others
etc. v. Union of India & others, [1985] 1 SCC 641; Gouriet and others v.
H.M. Attorney General, [1978] Appeal Cases 435; Gouriet v. Union of Post office
Workers, [1978] Appeal cases 435;
559 Gouriet v. Union of Post offices Workers & Ors.,
[1977] 1 Q.B. 729 to 752; Rajagopal v. Murtza Mutjahdi, [1974] 1 Andhra Law
Times 170; N. Venkataramanappa v. D.K. Naikar, A.I.R. 1978 Karnataka 57; Anil
Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1 and A.G. v. Times Newspapers,
[1974] AC 277, referred to.
CRIMINAL ORIGINAL JURISDICTION: Criminal Miscellaneous
Petition No. 260 Of 1988.
Under Section 15(1)(a) and (b) of the Contempt of Courts
Act,1971 read with its explanation (1) and Rule (3)(a), (b) and (c) of Contempt
of Supreme Court Rules, 1965.
Randhir Jain for the Petitioner.
B. Datta, Additional Solicitor General, Dr. Y.S. Chitale,
A.K. Ganguli, N. Nettar, G.S. Narayan, Gopal Subramanian, Mukul Mudgal, P.H.
Parekh, Sanjay Bharthari and R K. Joshi for the Respondents.
The following Judgments of the Court were delivered:
SABYASACHI MUKHARJI, J. By an order dated 15th March, 1988
we declined in this matter to initiate contempt proceedings under section 15(1)
(a) and (b) of the Contempt of Courts Act, 1971 (hereinafter called 'the Act')
read with rule 3(a), (b) and (c) of the Supreme Court Contempt of Court Rules,
1975. We also on that date disposed of the application for intervention filed
by Shri R.N. Trivedi. We stated that we will indicate our reasons by a separate
judgment. We do so herein Shri P. Shiv Shankar who at the relevant time was the
Hon'ble Minister for Law, Justice and Company Affairs delivered a speech before
a meeting of the Bar Council of Hyderabad on 28th November, 1987. Shri P.N.
Duda, who is an advocate practising in the Supreme Court, has drawn our
attention to that speech. According to him, by that speech respondent No. 1,
Shri P. Shiv Shankar has made statements against the Supreme Court which are
derogatory to the dignity of this Court, attributing this Court with partiality
towards economically affluent sections of the people and has used language
which is extremely intemperate, undignified, and unbecoming of a person of his
stature and position It was stated that Shri P. Shiv Shankar formerly held the
office of a Judge of the High Court before he resigned and took to politics.
560 We have read the entire speech. It is not necessary to
set out the A entire speech. The relevant portions of the said speech for the
present purpose are as follows:
"(a) The Supreme Court composed of the element from
the elite class had their unconcealed sympathy for the haves i.e. the
Zamindars. As a result, they interpreted the word 'compensation' in Article 31
contrary to the spirit and the intendment of the Constitution and ruled the
compensation must represent the price which a willing seller is prepared to
accept from a willing buyer The entire programme of Zamindari abolition
suffered a setback. The Constitution had to be amended by the 1st, 14th and
17th Amendments to remove this oligarchic approach of the Supreme Court with
little or no help. Ultimately, this rigid reactionary and traditional outlook
of property, led to the abolition of property as a fundamental right." He
inter alia further observed:
"(b) Holmes Alexander in his column entitled '9 Men of
Terror Squad' made a frontal attack on the functions of the U.S. Supreme Court.
It makes an interesting reading:
'Now can you tell what that black-robed elite are going to
do next. Spring more criminals, abolish more protections. Throw down more
ultras. Rewrite more laws. Chew more clauses out of the Constitution. May be,
as a former Vice-President once said, the American people are too dumb to
understand, but I would bet that the outcropping of evidence at the top in
testimony before the US Senate says something about the swelling concern among
the people themselves.' Should we not ask how true Holmes Alexander was in the
Indian context." The Minister further stated:
"(c) Twenty years of valuable time was lost in this
confrontation presented by the Judiciary in introducing and implementing basic
agrarian reforms for removal of poverty 561 what is the ultimate result.
Meanwhile even the political will seems to have given way and the resultant
effect is the improper and ineffective implementation of the land reform laws
by the Executive and the Judiciary supplimenting and complementing each
other." It was further stated by him:
"(d) The Maharajas and the Rajas were anachronistic in
independent India. They had to be removed and yet the conservative element in
the ruling party gave them privy purses. When the privy purses were abolished,
the Supreme Court, contrary to the whole national upsurge, held in favour of
the Maharajas".
"(e) Madhadhipatis like Keshavananda and Zamindars
like Golaknath evoked a sympathetic cord nowhere in the whole country except
the Supreme Court of India. And the bank magnates, the representatives of the
elitist culture of this country, ably supported by industrialists, the
beneficiaries of independence, got higher compensation by the intervention of
the Supreme Court in Cooper's case. Antisocial elements i.e. FERA violators,
bride burners and a whole horde of reactionaries have found their heaven in the
Supreme Court." Shri P.N. Duda brought the newspaper version of the said
speech to our notice. He further stated that the said speech contains slander
which was cast on this Court, both in respect of the Judges and its working. It
was alleged that Shri P. Shiv Shankar has done this to malign this Court. Shri
Duda further stated that he read the speech in the News Times and he had
approached the learned Attorney General of India and the learned Solicitor
General of India to give their consent for initiating contempt proceedings.
In those circumstances, the petitioner claimed that he also
made the Editor and Publisher of the newspaper-News Times as one of the
respondents. The learned Attorney General and the learned Solicitor General
have declined to deal with this prayer of the petitioner for the reasons stated
in the letter which is an annexure to this petition. We shall refer to that
part of the letter later. In those circumstances an application for initiation
of contempt entitled "Information under Section 15(1)(a) and (b) of the
Act read with Explanation (19 and Rule 3(a), (b) and (c) of Contempt of Supreme
Court Rules, 1975" in the matter of said Shri 562 P.N. Duda was made
wherein Shri P. Shiv Shankar, the learned A Attorney General, the learned
Solicitor General and the Editor of News Times were made parties. The
application having been moved before this Court on 10th February, 1988 we
directed issue of notice returnable on 15th March, 1988 to the respondents,
namely, Shri P. Shiv Shankar, Shri K. Parasaran, Shri Milon Banerji and Shri
Ramji Rao, Editor, News Times confined only to the question to consider whether
action, if any, need be taken on the said petition of the petitioner. We
requested the First Additional Solicitor General, Shri B. Datta to appear as
Amicus Curiae to assist the Court. On 11th February, 1988 Shri Duda mentioned
the matter and this Court clarified that the respondents need not appear in the
first instance in person. In the meantime, pursuant to the notice Shri P. Shiv
Shankar has filed an affidavit on 8th March, 1988 in which he has stated that
he had delivered a speech on the Silver Jubilee Celebration of the Bar Council
of Andhra Pradesh at Hyderabad where the audience consisted of Judges and
lawyers. On that occasion he had made a speech on the subject of accountability
of the Legislature, the Executive and the Judiciary. He further stated that
during the speech, he made comments on the accountability of the three organs
and theoretical implications thereof. The Minister has further reiterated with
utmost emphasis at his command that he intended no disrespect to any of the
institutions or its functionaries much less this Hon'ble Court. He further
stated that he has high regard for this Hon'ble Court. He further stated that
the contempt petition is not maintainable in law without the consent of the
Attorney General or the Solicitor General and it was liable to be dismissed. In
the Meantime an application has been filed by Shri R.N. Trivedi who is an
advocate of 25 years' standing at the Bar in which he has claimed the right to
be impleaded as a party. He has stated in the petition that the learned
Attorney General and the Solicitor General should not have been made parties to
the contempt petition and the alleged non-exercise of jurisdiction by the
Attorney General and the Solicitor General did not constitute contempt within
the meaning of section 2(c) of the Act. The remedy, if any, in respect of the
alleged non-exercise of jurisdiction and power would lie somewhere else,
according to Shri Trivedi. Shri B. Datta at our request appeared as Amicus
Curiae and made his submissions. We express our gratitude to him.
Before deciding the question whether this application was
maintainable without the consent of the Attorney General or the Solicitor
General as contended by Dr. Chitale on behalf of Shri Shiv Shanker and the
question whether the Attorney General and the Solicitor 563 General could be
made parties to the contempt application and whether their action or inaction
was justiciable at all in any proceeding and if so in what proceedings, it is
necessary to decide the basic question whether the speech made by Shri P. Shiv
Shankar and published throughout the length and breadth of the country amounted
to contempt of this Court, or in other words, whether the speech has the effect
of bringing this Court into disrepute.
"Justice is not a cloistered virtue. she must be
allowed to suffer the scrutiny and respectful, even though outspoken, comments
of ordinary men." - said Lord Atkin in Ambard v. Attorney-General for
Trinidad and Tobago, [1936] A.C. 322 at 335. Administration of justice and
Judges are open to public criticism and public scrutiny. Judges have their
accountability to the society and their accountability must be judged by their
conscience and oath of their office, that is, to defend and uphold the
Constitution and the laws without fear and favour. This the Judges must do in
the light given to them to determine what is right. And again as has been said
in the famous speech of Abraham Lincoln in 1865 "With malice towards none,
with charity for all, we must strive to do the right, in the light given to us
to determine that right." Any criticism about the judicial system or the
Judges which hampers the administration of justice or which erodes the faith in
the objective approach of Judges and brings administration of justice into
ridicule must be prevented. The Contempt of Court proceedings arise out of that
attempt. Judgment can be criticised; the motives of the Judges need not be
attributed, it brings the administration of justice into deep disrepute. Faith
in the administration of justice is one of the pillars through which democratic
institution functions and sustains. In the free market place of ideas
criticisms about the judicial system or Judges should be welcomed, so long as
such criticisms do not impair or hamper the administration of justice. This is
how Courts should approach the powers vested in them as Judges to punish a
person for an alleged contempt, be it by taking notice of the matter suo motu
or at the behest of the litigant or a lawyer.
In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar,
[1971] I S.C.R. 697, this Court had to deal with this jurisdiction in respect
of Mr. Namboodiripad who at the relevant time was the Chief Minister of Kerala.
He had held a press conference in November, 1976 and made various critical
remarks relating to the judiciary which inter alia was described by him as
"an instrument of oppression" and the Judges as "dominated by
class hatred, class prejudices", "instinctively" favouring the
rich against the poor. He also stated that as part of 564 the ruling classes
the judiciary "works against workers, peasants and A other sections of the
working classes" and "the law and the system of judiciary essentially
served the exploiting classes" (emphasis supplied) It was found that these
remarks were reported in the newspapers and thereafter proceedings commenced in
the High Court of Kerala. The appellant Shri Namboodiripad was called upon to
show cause why he should not be committed for contempt. In his affidavit the
appellant stated that the reports were "substantially correct",
though incomplete in some respects.
The appellant further claimed that his observations did no
more than give expression to the Marxist Philosophy and what was contained in
the programme of the Communist Party of India. By a majority judgment of the
High Court the appellant was convicted for contempt of court and fined Rs. 1000
or simple imprisonment for one month. He moved this Court by an appeal. He
contended that the law of contempt must be read without encroaching upon the
guarantee of freedom of speech and expression under Article 19(1)(a) of the
Constitution and that the intention of the appellant in making his remarks at
the press conference should be examined in the light of his political views
which he was at liberty to put before the people. He sought to justify the
remarks as an exposition of his ideology which he claimed was based on the
teachigs of Marx and Engels and on this ground claimed protection of the first
clause of Article 19(1) of the Constitution. The conviction of the appellant
was upheld by this Court. It was observed by Hidayatullah, C.J speaking for the
Court that the law punishes not only acts which do not in fact interfere with
the courts and administration of justice but also those which have that
tendency, that is to say, are likely to produce a particular result. Judged
from the angle of courts and administration of justice, there was no doubt that
the appellant was guilty of contempt of court. The Chief Justice observed
whether the appellant misunderstood the teachings of Marx and Engels or
deliberately distorted them was not to mush purpose. The likely effect of his
words must be seen and they clearly had the effect of lowering the prestige of
judges and courts in the eyes of the people. (emphasis supplied) That he did
not intend any such result may be a matter for consideration in the sentence to
be imposed on him but could not serve as a justification. This Court further
held that the appellant had misguided himself about the true teachings of Marx,
Engles and Lenin. According to the Chief Justice he had misunderstood the
attack by them on State and the laws as involving an attack on the Judiciary.
No doubt the courts, while upholding the laws and enforcing them, do give
support to the State but they do not do so out of any impure motives. To charge
the Judiciary as an instrument of oppression, the Judges as guided and
dominated by class hatred, class 565 interests and class prejudices, instinctively
favouring the rich against the poor is to draw a very distorted and poor
picture of the Judiciary. It A was clear that the appellant bore an attack upon
judges which was calculated to raise in the minds of the people a general
dissatisfaction with and distrust of all judicial decisions. According to the
Chief Justice it weakened the authority of law and law courts (emphasis
supplied). It was further held that while the spirit underlying Article
19(1)(a), must have due play, the Court could not overlook the provisions of
the second clause of that Article. Its provisions are to be read with Articles
129 and 215 which specially confer on this Court and the High Courts the power
to punish for contempt of themselves.
Although Article 19(1)(a) guaranteed complete freedom of
speech and expression, it also made an exception in respect of contempt of
court. While the right is essential to a free society, the Constitution had
itself imposed restrictions in relation to contempt of court and it could not
therefore be said that the right abolished the law of contempt or that attack
upon judges and courts would be condoned. We are not concerned here whether the
appellant in that case properly understood the communist manifesto or the views
of the Marx, Engles and Lenin. While respectfully accepting the ratio and the
observations of the learned Chief Justice made in that decision we must
recognise that times and clime have changed in the last two decades. There have
been tremendous erosions of many values. In this connection it is interesting
to note that little over sixty years ago, on 1st March, 1928, Justice Holmes
wrote to Prof. Harold Laski " . . .You amaze me by saying, if I understand
you, that criticism of an opinion or judgment after it has been rendered, may make
a man liable for contempt. I thought that notion was left for some of our
middle western states. I must try to get the book and the decision .. "
(Holmes-Laski Letters Vol. I 1916-1925 Page 1032).
In the instant case we have examined the entire speech.
In the speech Shri P. Shiv Shankar has examined the class
composition of the Supreme Court. His view was that the class composition of
any instrument indicates its pre- disposition, its prejudices. This is
inevitable. Justice Holmes in his dissenting opinion in Joseph Lochner v.
People of the State of New York, 49 Lawyers' Edition 195-198 U.S. 1904 had
observed "General propositions do not decide concrete cases. The decision
will depend on a judgment or intuition more subtle than any articulate major
premise." That intuition more subtle than major premise is the pride and
the prejudice of a human instrument of a Judge through which objectively the
Judge seeks to administer justice according to law. So, therefore, in a study
of accountability if class 566 composition of the people manning the
institution is analysed we forewarn ourselves of certain inclination it cannot
be said that an expression or view or propagation of that view hampers the
dignity of the Courts or impairs the administration of justice.
The question of contempt of court by newspaper article
criticising the Judges of the Court came up for consideration in the case of
Re: Shri S. Mulgaokar, [1978] 3 S.C.R. 162. In order to appreciate the
controversy in this case it has to be stated that the issue dated 13th
December, 1977, of the Indian Express published a news item that the High
Courts had reacted very strongly to the suggestion of introducing a code of
judicial ethics and propriety and that "so adverse has been the criticism
that the Supreme Court Judges, some of whom had prepared the draft code, have
disowned it". In its issue dated December 21, 1977 an article entitled
"behaving like a Judge" was published which inter alia stated that
the Supreme Court of India was "packed" by Mrs. Indira Gandhi
"with pliant and submissive judges except for a few". It was further
stated that the suggestion that a code of ethics should be formulated by Judges
themselves was "so utterly inimical to the independence of the judiciary,
violative of the Constitutional safeguards in that respect and offensive to the
self-respect of the Judges as to make one wonder how it was conceived in the
first place". A notice had been issued to the Editor-in-Chief of the
Newspaper to showcause why proceedings for contempt under Article 129 of the
Constitution should not be initiated against him in respect of the above two
news items It was observed by Chief Justice Beg in that decision that national
interest required that all criticisms of the judiciary must be strictly rational
and sober and proceed from the highest motives without being coloured by any
partisan spirit or tactics. This should be apart of national ethics. The
comments about Judges of the Supreme Court suggesting that they lack moral
courage to the extent of having "disowned" what they had done or in
other words, to the extent of uttering what was untrue, at least verge on
contempt. None could say that such suggestions would not make Judges of this
Court look ridiculous or even unworthy, in the estimation of the public, of the
very high office they hold if they could so easily "disown" what they
had done after having really done it. It was reiterated that the judiciary can
not be immune from criticism. But, when that criticism was based on obvious
distortion or gross mis- statement and made in a manner which seems designed to
lower respect for the judiciary and destroy public confidence in it, it could
not be ignored. A decision on the 567 question whether the discretion to take
action for Contempt of Court should be exercised must depend on the totality of
facts and circumstances of the case. The Chief Justice agreed with the other
two learned Judges in that decision that in those facts the proceedings should
be dropped.
Krishna Iyer, J. in his judgment observed that the Court
should act with seriousness and severity where justice is jeopardised by a
gross and/or unfounded attack on the Judges, where the attack was calculated to
obstruct or destroy the judicial process. The Court must harmonise the
constitutional values of free criticism, and the need for a fearless curial
process and its presiding functionary, the judge. To criticise a judge fairly
albeit fiercely, is no crime but a necessary right. Where freedom of expression
subserves public interest in reasonable measure, public justice cannot gag it
or manacle it. The Court must avoid confusion between personal protection of a
libelled judge and prevention of obstruction of public justice and the
community's confidence in that great process. The former is not contempt but
latter is, although overlapping spaces abound. The fourth functional canon is
that the Fourth Estate should be given free play within responsible limits even
when the focus of its critical attention is the court, including the highest
court. The fifth normative guideline for the Judges to observe is not to be
hypersensitive even where distortions and criticisms overstep the limits, but
to deflate vulgar denunciation by dignified bearing, and the sixth
consideration is that if the Court considers the attack on the judge or judges
scurrilous, offensive, intimidatory or malicious beyond condonable limits, the
strong arm of the law must strike a blow on him who challenges the supremacy of
the rule of law by fouling its sources and stream.
It is well to remember the observations of Justice Brennan
of U.S. Supreme Court (though made in the context of law of libel) in New York
Times Company v. L.B. Sullivan, 376 U.S. 254 that it is a prized privilege to
speak one's mind, although not always with perfect good taste, on all public
institutions and this opportunity should be afforded for vigorous advocacy no
less than abstract discussion.
Lord Denning in Regina v. Commissioner of Police of the
Metropolis, Ex parte Blackburn, [1968] 2 W.L.R. 1204 observed as follows.
"Let me say at once that we will never use this
jurisdiction as a means to uphold our own dignity.
That must rest on surer foundations. Nor will we use it to
suppress those who speak against us. We do not fear criticism, nor do we resent
568 it. For there is something far more important at stake. It is no less than
freedom of speech itself.
It is the right of every man, in Parliament or out of it,
in the Press or over the broadcast, to make fair comment, even outspoken
comment on matters of public interest. Those who comment can deal faithfully
with all that is done in a court of justice. They can say that we are mistaken,
and our decisions erroneous, whether they are subject to appeal or not. All we
would ask is that those who criticise us will remember that, from the nature of
our office, we cannot reply to their criticisms. We cannot enter into public
con- troversy. Still less into political controversy.
We must rely on our conduct itself to be its own
vindication.
Exposed as we are to the winds of criticism, nothing which
is said by this person or that, nothing which is written by this pen or that,
will deter us from doing what we believe is right; nor, I would add, from
saying what the occasion requires, provided that it is pertinent to the matter in
hand. Silence is not an option when things are ill done." The aforesaid
observations were made in respect of an article written by Mr. Quintin Hogg in
"Punch" (as later Lord Hailsham then was) more or less in a critical
language as the Hon'ble Minister's speech in the instant case.
Gajendragadkar, C.J. in Special Reference No. 1 of 1964,
[1965] 1 SCR 413 observed as follows:
"We ought never to forget that the power to punish for
contempt, large as it is, must always be exercised cautiously, wisely and with
circumspection. Frequent or indiscriminate use of this power in anger or
irritation would not help to sustain the dignity or status of the court, but
may sometimes affect it adversely. Wise Judges never forget that the best way
to sustain the dignity and status of their office is to deserve respect from
the public at large by the quality of their judgments, the fearlessness,
fairness and objectivity of their approach, and by the restraint, dignity and
decorum which they observe in their judicial conduct." It has been well
said that if judges decay, the contempt power 569 will not save them and so the
other side of the coin is that Judges, like Caesar's wife, must be above
suspicion, per Krishna Iyer, J. in Shri Baradakanta Mishra v. The Registrar of
Orissa High Court and another, [1974] 1 S.C.C. 374. It has to be admitted
frankly and fairly that there has been erosion of faith in the dignity of the
court and in the majesty of law and that has been caused not so much by the
scandalising remarks made by politicians or ministers but the inability of the
courts of law to deliver quick and substantial justice to the needy. Many today
suffer from remedyless evils which courts of justice are incompetent to deal
with. Justice cries in silence for long, far too long.
The procedural wrangle is eroding the faith in our justice
system. It is a criticism which the Judges and lawyers must make about
themselves. We must turn the search light inward.
At the same time we cannot be oblivious of the attempts
made to decry or denigrate the judicial process, if it is seriously done. This
question was examined in Rama Dayal Markarha v. State of Madhya Pradesh, [1978]
3 S.C.R. 497 where it was held that fair and reasonable criticism of a judgment
which is a public document or which is a public act of a Judge concerned with
administration of justice would not constitute contempt. In fact such fair and
reasonable criticism must be encouraged because after all no one, much less
Judges, can claim infallibility. Such a criticism may fairly assert that the
judgment is incorrect or an error has been committed both with regard to law or
established facts.
But when it is said that the Judges had a pre-disposition
to convict or deliberately took a turn in discussion of evidence because he had
already made up his mind to convict the accused, or has a wayward bend of mind,
is attributing motives, lack of dispassionate and objective approach and
analysis and pre-judging of the issues which would bring administration of
justice into ridicule. Criticism of the Judges would attract greater attention
than others and such criticism sometime interferes with the administration of
justice and that must be judged by the yardstick whether it brings the
administration of justice into a ridicule or hampers administration of justice.
After all it cannot be denied that pre-disposition or subtle prejudice or
unconscious prejudice or what in Indian language is called "Sanskar"
are inarticulate major premises in decision making process. That element in the
decision making process cannot be denied, it should be taken note of.
It has to be borne in mind, as has been said by Benjamin N.
Cardozo in "The Nature of the Judicial Process" at pages 16-17 that
the Judge as the interpreter for the community of its sense of law and order
must supply omissions, correct uncertainties, and harmonize results with
justice through a method of free decision. Courts are to 570 "search for
light among the social elements of every kind that are the A living force
behind the facts they deal with". The power thus put in their hands is
great, and subject, like all power, to abuse; but we are not to flinch from
granting it. In the long run "there is not guaranty of justice," said
Ehrlich, "except the personality of the judge. Justice Benjamin N. Cardozo
further says at page 112 of the said book that judicial process comes then to
this, and little more logic, history, custom and utility, and the accepted
standards of right conduct, are the forces which singly or in combination shape
the progress of the law.
Judges try to see things as objectively as they please.
Nonetheless, we can never see them with any eyes except our
own. Therefore, the perception of a judge is important and relevant. Judicial
process is not only a path of discovery but a path of creation (Cardozo
"the Nature of the Judicial Process").
President Roosevelt in his message to the Congress of the
United States on December 8, 1908 stated thus:
"The chief lawmakers in our country may be, and often
are, the judges, because they are the final seat of authority. Every time they
interpret contract, property, vested rights, due process of law, liberty, they
necessarily enact into law parts of a system of social philosophy; and as such
interpretation is fundamental, they give direction to all lawmaking. The
decisions of the courts on economic and social questions depend upon their
economic and social philosophy; and for the peaceful progress of our people
during the twentieth century we shall owe most to those judges who hold to a
twentieth century economic and social philosophy and not to a long outgrown
philosophy, which was itself the product of primitive economic
conditions." Justice Benjamin N. Cardozo says that he remembers when the
statement made aroused a storm of criticism. (Cardozo- The Nature of the
Judicial Process-pages 171-173). It betrayed ignorance, he said, of the nature
of the judicial process. Justice Benjamin N. Cardozo tells us that the business
of the judge, was to discover objective truth. His own little individuality,
his tiny stock of scattered and unco-ordinated philosophies, these, with all
his weaknesses and unconscious prejudices, were to be laid aside and forgotten.
According to Cardozo the truth is, however, that all these inward questionings
are born of the hope and desire to transcend the limitations which hedge our
human nature. According to Cardozo, Roosevelt, who knew men, 571 had no
illusions on this score. He was not positing an ideal. He was not fixing a
goal.
He was measuring the powers and the endurance of those A by
whom the race was to be run.
It is well to remember the words of Justice Cardozo where
he says as follows:
"I have no quarrel, therefore, with the doctrine that
the judges ought to be in sympathy with the spirit of their times. Alas! assent
to such a generality does not carry us far upon the road to truth. In every
court there are likely to be as many estimates of the 'Zeitgeist' as there are
References : India Kanoon
: Main.Sci.Gov.in : PN Dua Case
: Legal Services India
: The-Laws.com - PN Dua Vs Shivshankar
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