Re: Shri S. Mulgaokar, [1978] 3 S.C.R. 162

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.

On 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”.

Contempt of court notice issued to the Newspaper

A notice had been issued to the Editor-in-Chief of the Newspaper to show cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items.

Observations of the Court

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.

Decision on the Contempt Case

A decision on the 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.

Observations by Justice Krishna Iyer

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.