Thursday, July 19, 2012

T.A. Rajendran (NAVAB) vs Vayalar Ravi & Ors.

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Kerala High Court

T.A. Rajendran vs Vayalar Ravi And Ors.                                   
on 16 December, 1982 Equivalent citations:   AIR 1983 Ker 105      
Author: Bhaskaran               
Bench: K Bhaskaran, P B Menon
Bhaskaran, J.
1. The petitioner Sri T.A. Rajendran is stated to be the Editor of Navab, Trichur. This petition is purported to be filed under Article 215 of the Constitution of India and Section 14 of the Contempt of Courts Act, 1971 (the Act); on the allegation contained in the petition; the apt provision of the Act appears to be Section 2 (c) read with Section 12. Respondents l and 2 respectively are the Home Minister and Irrigation Minister of the State of Kerala, Respondents 3 to 5 are the publishers and Editors of the two Newspapers, the Kerala Koumudi and Mathrubhoomi, and the 6th respondent is the State of Kerala, represented by the Chief Secretary.

2. The petitioner's case is that the public speeches made by the two Ministers on the 6th December. 1982, at the Youth Conference held at Mannam Nagar, Trivandrum, under the auspices of the Samastha Kerala Nair Maha Sammelanam, the newspaper reports of which are marked Exts. P-1 and P-2, constituted contempt of Court. The English version of Ext. P-l (which, according to the petitioner, contained the objectionable part of the statement attributed to the alleged contemners as reported in the Kerala Koumudi dated the 7th December 1982) reads as follows:--
"If judiciary attempts to view the Government as political parties do, it would create difficulties for both", reminded the Home Minister Vayalar Ravi.
"Government is prepared to recognise the right of judiciary to interpret law; but, if things go beyond that limit, it cannot be taken lightly", he stated.
"The Home Minister was inaugurating the Youth Conference held in Mannam Nagar in connection with the Samastha Kerala Nair Maha Sammalanam. He emphasised the need for the judiciary, the Government and the Legislature functioning in harmony with mutual trust in order to strengthen democracy and ensure that people's faith in democracy is not shaken. Distrust among the three branches is not desirable. It is not proper for the judiciary to view the Government as enemy; particularly, is it correct for the judiciary to criticise the Government in the style of opposition parties? asked the Minister. He said, democracy would survive only if there are healthy traditions among these three branches'. The Home Minister said, 'It is the duty of the youth to preserve democracy which has taken root in the soil of India', he reminded the youth that the price to be paid for preserving democracy would be higher than that given for achieving it. If democracy survives, the gain is for the youth, and if it perishes, the damage also is to the youth", he said, democracy would survive only if there are healthy traditions among these three branches'. The Home Minister said, 'It is the duty of the youth to preserve democracy which has taken root in the soil of India', he reminded the youth that the price to be paid for preserving democracy would be higher than that given for achieving it. If democracy survives, the gain is for the youth, and if it perishes, the damage also is to the youth", he said.
Minister Gangadharan
"Considering the national interest, whether it is the judiciary, the Government or Legislature, in certain matters boundary bunds have to be erected", said the Irrigation Minister Sri M.P. Gangadharan who presided over the Sammelanam. He also said that if there were mistakes in the functioning and decisions of the judiciary, there should be restraint against it.
3. Ext. P-2 is the extract from the issue of the Mathrubhoomi daily dated the 7th December, 1982. Its rendition in English would be as follows:--
On Monday two Ministers of Kerala from the same platform expressed the opinion that the criticism by the judiciary should not outstep the limit. It was at the Yuva Jana Sammelanam held in connection with the Samastha Kerala Nair Maha Sammelanam that the Home Minister Vayalar Ravi and Irrigation Minister M.P. Gangadharan expressed this opinion.
"It is a matter for self-introspection whether judiciary could criticise the Government in a more severe manner than in which the opposition parties do", so said Vayalar Ravi, inaugurating the Sammelanam. "It is when the judiciary transgresses its limits, and adopts the style of political parties in criticising the Government the trouble arises. Transgressing its limits by each cannot be allowed to go unheeded". Sri. M.P. Gangadharan stated that whether it was the court of law, the Legislature or the Executive, in the national interests, its functioning should not transgress the limit. "Judiciary should exercise restraint on its thoughts. As it is not proper to give further details, I leave it there, not because of fear", said he.
4. Section 2 (c) of the Act provides: " 'Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:--
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or
(ii) Prejudices, or interferes or lends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
5. Sri A.X. Varghese, the counsel for the petitioner, summing up his argument, stressed the following points for our consideration:--
(1) Whether respondents 1 and 2 could have, without committing contempt of Court, compared the judiciary with the opposition parties ?
(2) Have not respondents 1 and 2 committed contempt of Court by making the speeches, the extracts of the reports of which are produced as Exts. P-1 and P-2, inasmuch as there is an innuendo that judiciary had been exceeding its bounds ?
(3) Do not the statements made by respondents 1 and 2 have a tendency to lower the authority of the court, prejudice and interfere with the due course of judicial proceedings, and to obstruct the administration of justice, and thereby have they not committed contempt of Court ?
(4) Do not the statements contained in Exts. P-1 and p-2 amount to implied threat to the judiciary against criticism of the Government, and would not, that amount to contempt of court ?
(5) It is not possible to infer that there was a well designed plan decided upon by the Council of Ministers at its meeting held on 2-12-1982 to mount an attack on the judiciary and to create a fear complex in the minds of the Judges and thereby obstruct the dispensation of justice fearlessly ?
(6) It it not clear from the statements that the makers thereof threatened to put a restraint on the thoughts of judiciary and that they would tolerate only a committed judiciary, not an independent judiciary?
6. The crucial question is whether the respondents are quilty of scandalising the judiciary, or, generally speaking, of making statements which tend to brine the authority and administration of the law into disrespect or disregard, or tend to bring the judiciary into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority, vide the observations of Hidayatullah C. J., in paragraph 6 of the Supreme Court decision in E.N.S. Namboodiripad v. T.N. Nambiar (AIR 1970 SC 2015).
7. Now we would analyse the statements, and objectively consider whether the statements attributed to respondents 1 and 2, assuming, without deciding, that Exts. P-1 and P-2 represent the true and correct version of the statements made by them, constitute contempt of Court. To recapitulate, what, according to the petitioner, form the objectionable parts of the speeches made by respondents 1 and 2 are :--They have said:--
(1) The judiciary, as also the executive and the legislature, should function within its assigned sphere, without transgressing the limits.
(2) The judiciary should not criticise the Government in a tone or manner which is even more severe than that of the opposition parties.
(3) The judiciary should not view the Government as though it is its enemy.
(4) The three organs of the State, viz., the legislature, the judiciary and the executive should function in harmony with mutual trust.
(5) When one of the organs, the judiciary, transgresses its bounds, troubles, which are unpleasant would arise.
(6) In the national interest, it is necessary to keep each organ within its limit; and the judiciary should have restraint on its thoughts.
(7) The 2nd respondent left his comments at that point, without elaborating, for the sake of propriety, but not out of fear.
8. The three pillars of democracy are the Legislature, the Executive and the Judiciary, each having its assigned role. It is an accepted principle that each of these organs should confine itself to its sphere without transgressing its limits. The statements attributed to respondents 1 and 2 so far as they go to this extent do not appear to constitute an offensive statement to attract the penal provisions of the Act. Even the making of a statement in general that Judiciary should not criticise the Government in a style more severe than that of the opposition, without anything more, could not amount to contempt of Court. The position, however, would be different if such seemingly innocent statements are made without good faith and with the evil intention of bringing the Courts or the Judiciary as a whole into disrepute or disrespect. Though mens rea, as such, is not an indispensable ingredient of the offence of contempt, the Courts are loath to punish a Contemner if the act Or omission complained of was not wilful, as observed by the Supreme Court in S. Abdul Karim v. M.K. Prakash (AIR 1976 SC 859).
9. We have given our serious thoughts to the statements contained in Exts. P-1 and P-2, and having considered the statements as a whole objectively, we have little doubt in our minds that a case for proceeding under the Act has not been made out against respondents 1 and 2. No doubt, the petitioner has a case that these statements have to be assessed in the background of a contempt petition filed by himself against the Chief Minister of the State pertaining to certain statements alleged to have been made by him at a Press Conference soon after the Cabinet meeting on the 2nd December, 1982, which respondents 1 and 2 are to be presumed to be aware of, and that it would be reasonable to infer that the statements made by the two Ministers from a common platform, so soon thereafter, is made as part of a well designed plan for concerted action to mount an attack on the judiciary. We find no material on record for safely drawing an inference of such a design for concerted action or that what was stated by respondents 1 and 2 is part of any such move. When this limb of the argument fails, the petitioner has to fall back solely on the statements contained in Exts. P-1 and P-2 which per se do not amount to contempt of court. Some of the expressions used in the statements alleged to have been made by respondents 1 and 2, presumably unguardedly in the course of extempore speeches, might sound irritant, illogical and unreasonable, yet, we think, we should not feel provoked; nor should we submit ourselves to hyper-sensitiveness. In saying so, we are guided by the following observations of Beg. C. J., in paragraph 16 of the decision in the Indian Express case (In re S. Mulgaokar AIR 1978 SC 727):
"I am not one of those who think that an action for contempt of Court, which is discretionary should be frequently or lightly taken. But at the same time, I do not think that we should abstain from using this weapon even when its use is needed to correct standards of behaviours in a grossly and repeatedly erring quarter. It may be better in many cases for the judiciary to adopt a magnanimously charitable altitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement."
In judging whether it constitutes a contempt of Court or not, we are concerned more with the reasonable and probable effect of what is said or written than with the motives behind what is done, as stated by Beg. C. J., in paragraph 17 of the decision cited above. Moreover, the learned Advocate General made a submission in Court that in a letter received by him from the 1st respondent it was stated that he and the Government had the greatest regard for judiciary, that in their speeches at the meeting he and the 2nd respondent had not stated anything to denigrate the judiciary, and that the newspapers in question had not correctly quoted them while reporting their speeches.
10. The counsel for the petitioner in support of his case cited ihe decisions of the Supreme Court in In re. P. C. Sen (AIR 1970 SC 1821) and E.M.S. Namboodiripad v. T.N. Nambiar (AIR 1970 SC 2015); the decision of the Madras High Court in E. Ramaswami v. Jawaharlal (AIR 1958 Mad 558), and the decision of the Court in Vincent v. Gopala Kurup (1982 Ker LT 151) : (1982 Cri LJ 2094). We do not think that any one of these decisions would apply to the facts of the present case. In P.C. Sen's case (AIR 1970 SC 1821) in a petition moved by Nani Gopal Paul the High Court of Calcutta declared by order dated 16-11-1965, that the West Bengal Channa Sweets Control Order, 1965, was an "unreasonable piece of delegated legislation made in arbitrary exercise of power under Rule 125 without any justification in law and regardless of the purpose for which such order may be made", and issued an injunction against the State of W. B. from enforcing that order. In the course of his broadcast speech on 25-11-65 on the Calcutta Station of the All India Radio Sri p. C. Sen, then Chief Minister of West Bengal, made several comments on the controversial matters which wire pending for adjudication before the Court then. In that case it was held that the comments on matters pending adjudication by the Court were calculated to obstruct the course of justice, and on that account it amounted to contempt of Court. In E.M.S. Namboodiripad's case (AIR 1970 SC 2015) the charge against the contemner who was then the Chief Minister of Kerala, was that he had at a Press Conference stated, inter alia, that the judiciary was an instrument of oppression of the poor and the downtrodden. In Ramaswamy's case (AIR 1958 Mad 558), reference made by Jawaharlal Nehru to the agitation of Dravida Kazhagam, of which the petitioner Ramaswamy was the leader, and the insult offered to the National Flag, but without any reference to the criminal case or to the particular speeches of the petitioner which was the subject-matter of the criminal charges against him, was held to be not an offence under the Act, as, on the petitioner's own showing, there was nothing to show that Jawaharlal Nehru was aware of the pendency of the case against the petitioner at the time when he made the comments. In Gopala Kurup's case (1982 Ker LT 151) : (1982 Cri LJ 2094) the finding of this Court was that the criticism of the contemner was intended to promote his own interest, not that of the general public. In the judgment it was said (para 12):
"When a party to a litigation does it, he is essentially subjective to a considerable extent and it is more in his own interest that he does it than in the public interest. The contemner in this case identifies himself with the University because he evidently feels that it was the conduct of examination by the University that was commented upon and that called for an answer from him. He was apparently trying to vindicate himself. This has a bearing on determining whether the criticism is honest". Evidently the facts stated in any of these cases do not have even a semblance to the charges levelled against respondents 1 and 2 in this case.
11. Tested in the light of the norms set out by Krishna Iyer, J., in paras 27 to 33 of the judgment in the Indian Express case (In re. S. Mulgaokar (AIR 1978 SC 727), we are satisfied that we will do well not to exercise the discretion vested in us for action under the Act against the respondents in this case. We refrain from making any comments on the propriety or justification of the language used and views expressed by respondents l and 2 in the purported text of their speeches, as, in our opinion, it might not be necessary or even proper for us to do so once we decide that there is no case for the issue of notice to the respondents.
12. The result, therefore, is that we dismiss this petition. We would like to place on record our sense of appreciation for the assistance rendered by the learned Advocate General during the course of hearing on the question whether there are grounds for the issue of notice to the respondents. Even though the petitioner is not an aggrieved person, and his duty is confined to bringing the alleged contempt to the notice of this Court, we appreciate the pains taken by his counsel Sri A.A. Varghese in preparing the case and presenting it before us.
Balakrishna Menon, J.
13. I have had the advantage of perusing the judgment prepared by my learned brother Bhaskaran, J., and I fully agree with the reasoning and conclusion in his judgment. I would, however, like to add a few words of my own considering the importance of the question raised.
14. In R.V. Kirby ex parte Boiler-makers' Society of Australia (1957 A. C. 288) Lord Simonds said at page 315. "In a federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or by the Executive.
15. On of the essential functions of the Court in modern times is to decide disputes between the State and the citizen. A modern State arms itself with immense powers to bring about socio-economic changes. Such powers exercised by any human agency are sometimes fraught with the danger of abuse of power, and the liberty of the citizen may at times be in danger of encroachment by men of zeal, well meaning, but lacking in a true perspective of the rule of law. Our Constitution has the welfare of the citizen in its view and it is for that purpose that it enshrines fundamental rights and social liberties. Unless there is an effective machinery for the enforcement of these rights and liberties, the same will remain as mere show-pieces in the Constitution. The rights of the citizen can be enforced against the Government and those in authority through the machinery of Court provided for in the Constitution itself. For a practical application of the Rule of law, every civilized society requires an independent judiciary. In the process of decision making it may have sometimes to make adverse comments against one of the parties to the litigation before it and in modern times the executive Government figures as a party in several cases before the Courts. Judges decide cases coming up before them. They have no forum to reply to the comments by men in public life expressed on public platforms. It is the duty of those who adhere to the principles of liberty, democracy and the rule of law to see that the institutions of democracy are not run down before the public, and it behoves well for all concerned not to be shortsighted in their perspective so that the democratic institutions do not forfeit public confidence.
Immediately after the judgment was pronounced the counsel for the petitioner made an oral submission that certificate for appeal to the Supreme Court may be granted. We find no substantial question of law of general importance, which in our opinion needs to be settled by the Supreme Court, involved in this case. In our opinion this is not a fit case for granting leave to appeal to the Supreme Court; hence the request is rejected.

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