This case arose as a result of an interview given by a judge who tried a case in which he convicted the accused to death. The judge knew that the death sentence was awaiting confirmation in the High Court, but still he gave interviews to the press and even an interview on national television supporting the decision that he had given. The Court noted:
?What is exercising our minds and as we know the minds of all those concerned with law and justice is as to why does he [the judge] find it necessary to go to the press etc. to give interviews in respect of pending case knowing very well that his interviews were bound to create an atmosphere of prejudice against the accused in the mind of the general public??
66. In discussing the ?atmosphere of prejudice? mentioned in the question, the Court held that,
?It cannot be denied that one of the most valuable rights of our citizens is to get a fair and impartial trial free from an atmosphere of prejudice. This right flows necessarily from Article 21 of the Constitution which makes it obligatory upon the State not to deprive any person of his life or personal liberty except according to the procedures established by law. It is, therefore, obligatory on all the citizens that while exercising their right they must keep in view the obligations cast upon them. If accused have a right to a fair trial then it necessarily follows that they must have a right to be tried in an atmosphere free from prejudice or else the trial may be vitiated on this ground alone.?
67. On the impact of post-decision interviews pending an appeal (or confirmation as in this case) the Court observed: ?[S]howering praise on a judgment while its confirmation was sub-judice would certainly amount to creating prejudice in the mind of the general public and would make the task of the court very difficult. In such a case if the High Court comes to a different conclusion it will be faced with an additional burden of dispelling the impression from the public mind that the approach adopted by the lower court was correct.?
To my mind, in the above assertion Mr. S.M. Aggarwal has remembered the rights but forgotten the duties imposed on a Judge. Mr.Aggarwal seems to be labouring under an impression that after the sheds the robes of office he becomes free from all the restraints that the office of a Judge imposes on him and he is free to participate in any kind of extrajudicial activity. I am afraid this is 'not so. Mr. Aggarwal continues to be a Judge till he retires. He has to regulate his extra-judicial activites in a manner that they do not come into conflict with his judicial duties.
In my view, the interviews given by Mr. S.M. Aggarwal and widely published do come into conflict with his judicial duties. A litigant can also lose faith in his impartiality. Justice must not only be done but must also seem to be done. Till Mr. Aggarwal continues to be a Judge he will be dealing with a number of cases similar to the one in question. After Mr. Aggarwal has expressed his views so strongly on this subject I fail to see how any accused in a case like the one before us will have faith and confidence that he would get justice.
Delhi High Court
Subhash Chand vs S.M. Aggarwal And Anr. on 2 December, 1983
Equivalent citations: 1984 CriLJ 481, 25 (1984) DLT 52, 1984 (6) DRJ 160
Bench: R Aggarwal, M Sharief-Ud-Din
(1) Subhash Chand, petitioner, along with his brother Lakshman and mother Shakuntala were found guilty of having killed Sudha, wife of accused Lakshman by burning her. Shri S.M. Aggarwal, Additional Sessions Judge tried the case and on 27th of May 1983 sentenced all the three accused to death. After handing down the death sentences, he submitted the record to this Court.for confirmation of the death sentences. While the said murder reference No. I of 1983 was subjudice and immediately. after the pronouncement of death sentences, respondent No. 1 is alleged to have given press interviews and an interview to Doordarshan where he is stated to have discussed the merits of this case. This he is stated to have done despite his awareness that the case was still subjudice and the sentences passed by him were not executable unless the same is confirmed by this Court. It is alleged that respondent No. 1 who had tried the case had no business to go to press and Doordarshan and extensively discuss the merits of the case and to make remarks about the petitioner and his co-accused having pre-planned the murder of Sudha for a motive. It is said that the respondent No. I even went to the extent of providing his photograph for publication and it is also alleged that he received a procession of about 200 women in his chamber where sweets were distributed and he allowed himself to be garlanded and photographed. It is said that all this was done by respondent No. 1 in a case which was sub judice and with a view to create an atmosphere of prejudice against the accused. It is Further said that after giving out his views in the judgment respondent No. 1 in utter disregard of his office and judicial proprieties went out of his way to build up public opinion in favor of his judgment with a view to interfere in the course of justice.
(2) In his reply respondent No. 1 has not denied the allegations. Briefly stating his stand is that after pronouncement of the judgment it became a public property and all that was published in the press were the excerpts from his judgment. He, however, does not deny the fact of having given press interviews and an interview to Doordarshan in respect of the facts of the case. In respect of the facts that he allowed himself to be garlanded, photographed and received a deputation of women in his chamber, he says that he was mobbed after court hours despite his requests to the processionists that it was not proper. He, however, denied the fact that he allowed himself to be garlanded or that sweets were distributed. Apart from this, respondent No. 1 has asserted that since he was governed by I.A.S. Conduct Rules, he was within his rights to go to the press and to the television to propagate his views which were literary and honorary in character; that as a citizen of this great country and on being approached by the free media it was his duty to participate in a healthy discussion on a topic in the larger interests of the society and that by giving interviews he had only exercised his right to freedom of speech; that simply by being saddled with the duties of a judge he does not cease to be a free citizen. In short he has tried to justify everything he did. In pursuance of the direction by the Court, respondent No. 2 has produced script of the talk given by respondent No. 1. A rejoinder to what Shri Aggarwal has said in his reply has also been filed by the petitioner and a further affidavit has been filed by respondent No. 1 in which he has said that the interview given to magazines "Sarita", "Dinman" and "NavBharat Times" were given by him. But these do not respondent the true version of his talk but the journalist has couched these interviews in his own language to give it a journalistic flavour in order to make the publication more interesting and catchy for the readers. A number of petitions were also filed on behalf of individuals and social organizations for intervention in the proceedings on the ground that the petition raises an important point of great public interest.
(3) It would thus appear that these proceedings are an outcome of a very unfortunate event in which one of our own Additional Sessions Judge, respondent No. 1, has involved himself. It is difficult for us to believe that he is so innocent and ignorant as not to know the consequences of the conduct in which he has indulged. His conduct has definitely created a unique situation and we believe this is a unique case of its kind. In fact it is because of the importance of the question raised by the facts of this case that we decided to embark upon an exercise of finding out as to how a judge should conduct himself if he has to enjoy the confidence of general public, so fundamental and important for the administration of justice. The areas covered by the Contempt of Courts Act and the judicial proprieties are so overlapping that it is very difficult to draw a line and to distinguish between the two. The old dictum that justice should not only be done but it must appear to have been done despite its age has flourished and has not decayed. What exactly has happened is that immediately after sentencing the petitioner, his brother and his mother to death in a murder case, respondent No.1 made himself available to press and Doordarshan and extensively commented on the merits of the case. This he did despite the fact that he had made a reference to the High Court for confirmation of the death sentence and he surely was aware that the matter was ex-facie subjudice. Despite his awareness that confirmation proceedings were a continuation of the trial he has made a sustained effort to publicise the accused as criminals of the worst kind who had pre-planned the murder of Sudha, wife of Lakshman accused, after they failed to persuade her to bring further dowry from her parents. Thus, in this way soon after handing down his judgment he gives interviews to media and goes to Doordarshan to build up what may be called a public opinion in support of his judgment immediately after sending the accused to death cell. What is most significant in these interviews is the fact that he highlights it as a case of dowry burning which, indeed is a hotly debated topic of public importance and unfortunately press media also choose to publish it under scare headlines. reading of these interviews would show that these are not literary based on the long experience of a Judge and do not pertain to a topic. These are palpably the interviews in the form of his comments in respect of a case which on the date was subjudice. Since respondent No. 1 has admitted the truth of the allegations, it is not necessary for us to make a reference to the entire published material as in substance almost all interviews are similar.
(4) We may at this stage, however, make a reference to the interview given by him to Doordarshan. The interview is in the from of questions and answers. It is as under :- 1. Interviewer: Now Shri S.M. Aggarwal, who is Additional Sessions Judge in Delhi is talking to us. Recently he has delivered a judgment in the case of dowry death wherein he has awarded a death sentence. Mr. Judge, is it for the first time that a death sentence has been awarded in a case concerning dowry ? Shri Aggarwal : It is true that it is the first case in which death sentence has been awarded not to only one person but to three persons of a family. 2. interviewer : What was special in this case which forced you to award a death sentence ? Shri Aggarwal : There are several reasons for this. One of the reasons was that this murder was committed in a well planned manner. It was planned several days before it was committed. The second reason was the greed of money which turned into motive and ended in a murder. The third reason was the choosing of the barbarian weapon of murder which made the girl suffer agony for nine hours to die. Yet another most important reason according to me was that at the time of death the girl was having nine months' old pregnancy. We cannot even think that any per son would kill a woman who was going it give birth to a child in a few days. In my opinion, it was not one murder but it was a double murder which compelled me to think that if sentence of a death is not awarded in this case it would not go in the interest of the society. 3. Interviewer : In this case the neighbours played very important role in tendering the witness. Will you say something about this? 164 Shri Aggarwal : I think the neighbours are worthy of praise in this case who broke into the house on hearing the screams of burning Sudha and saved her from the death despite personal risk whereas the members of the family, who were criminals, were present in the house but stood in silence. They did not help in saving her. Even when the neighbours asked for some blanket or any other thing to put out the fire, they refused to give. The neighbours saved Sudha Goel by bringing blanket from outside. They played one more important role. In such cases it is very difficult to get the statement given before death. They heard that statement. As soon as Sudha was brought outside, she pointed towards the criminals and at once said these things against them "they have burnt me to death and taken away all my ornaments. Call my brothers from Calcutta." This is the evidence. The neighbours did not only save her but also stood witness to her dying declaration, which I think is very significant role. 4. Interviewer : You have given importance to the dying declaration i.e. statement before death. Mr. Judge, it is also seen that the girls give a statement at the time of burning and when this state ment goes to the court, it is not the same. Then what is the reason that you are attaching so much importance to it ? How can it be preserved and saved ? Shri Aggarwal: Such incidents of crimes in which women are burnt or burn themselves after marriage occur inside the house. No outsider can enter the house or stand a witness. Therefore members of the family either burn them forcibly or they become the witness. They cannot witness against the members of their family in the court. Therefore statement given before death assumes great importance in such cases. The society should try to take the woman to hospital while she is alive or even before taking her to the hospital. efforts should be made to enable her to make a true statement fearlessly before them. If she gives such a statement, it hardly matters whether it is written or remains unwritten. It is of paramount importance whether that statement is credible, spontaneous and natural. 5. Interviewer : Mr. Judge, it is likely that some viewers may be watching this programme including the daughters-in-law and their parents as also those who may be undergoing tortures due to dowry or for any other reasons. What will be your instructions for those girls and daughters-in-law. Shri Aggarwal : I think the women who are being harassed should apprise their parents and brothers and sisters of the treatment being meted out to them. They should also take their neighbours in confidence, because they can play a very important role. They should also realise the fact that if they would not cooperate in cases of incidents occurring in their neighborhood and not try to save the girl or hear the statement given by her before death, it may be their own daughter or sister who is someone's daughter-in-law at some other place. If they would not render any help to the daughter-in-law of their neighborhood how can they expect that any other neighbour would help their own daughter or sister. If possible, they should also write to the newspaper men or some independent agency so that any other person may come to know about their plight, and preventive action may be taken when needed. 6. Interviewer : Mr. Judge, people who are in favor of dowry have said that the girl gets some right by way of dowry on the parental property to which she is entitled. If dowry is abolished , this right would also be taken away. Would you throw light on this ? Shri Aggarwal : I do not agree with this view. In Hindu Succession Act there is a specific provisions that the girl has much right over her parental property as her brother. Therefore, so far as her right to property is concerned it has nothing to do with giving or not giving the dowry. She has full right over the parental property even without dowry and she should get it. She gets it."
(5) This would show that the answers to questions No. 2 and 3 are having direct bearing on the case which was decided by Shri S.M. Aggarwal respondent No. 1 and which he knew was pending before this Court for confirmation of the death sentence. It cannot be denied that while hearing this murder reference the High Court had to hear both sides and come to its own conclusion. It can never be presumed that this Court would necessarily accept the views of the judge making a reference to it. Thus it would be seen that the sentence of death passed by Shri S.M. Aggarwal respondent No. 1 could only become operative and executable if it were confirmed by this Court. What is excercising our minds and as we know the minds of all those who are concerned with law and justice is as to why does he find it necessary to go to the press etc. to give interviews in respect of pending case knowing very well that his interviews were bound to create an atmosphere of prejudice against the accused in the mind of the general public? It. cannot be denied that the answers given by him to Questions No. 2 and 3 at Doordarshan have definitely the capacity and tendency to do damage and vitiate atmosphere. In a case like this the intention to create an atmosphere of prejudice is not material. All that is to be seen is whether the conduct of the respondents has the tendency or potential to create an atmosphere of prejudice against the accused in the mind of the general public. One may ask as to why does he find it necessary to build an atmosphere in support of his judgment ? There can be no denial of the fact that the case in which he gave these press interviews was pending. In this view we are supported by the observations made in State of Maharashtra v. Sindhi alias Raman . The Supreme Court in this case held :- 166 "So far
as an accused person sentenced to death is concerned, his trial does not conclude with the termination of the proceedings in the court of Session. The reason is that the death sentence passed by the court of Sessions is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is passed by the competent court. Viewed from that stand-point, the confirmation proceedings under Sections 374, 375 and 376, Chapter xxvii of the Code of 1898, are in substance a continuation of the trial."
(6) The views expressed by the Supreme Court in this regard should sufficiently settle the issue.
(7) Bawa Gurcharan Singh, learned counsel for the petitioner, also invited our attention to Section "C(ii) of Contempt of Courts Act wherein a publication which prejudices or interferes or tends to interfere with, the due course of any judicial proceedings, has been defined as criminal contempt. His contention that by using the words "judicial proceeding" the Legislature has done away with the distinction between trial and appeal and has in its wisdom chosen to use the words......- ....................."judicial proceedings" which are wider in sweep and which we fair construction would mean even the appeal which is a continuation of the trial, to our mind appears to be well founded. It would thus be seen that respondent No. 1 went to the media to give interviews in respect of a case which was pending trial before this court and the contests of the interview would show that it had not only a tendency and capacity to cause prejudice but it did make it difficult for the court to deal with the case in the manner which law and justice would require of it.
(8) We have heard the learned counsel for the parties, counsel for the State as also the counsel for the interveners at great length. The main theme of the argument of Shri Bawa Gurcharan Singh and Shri D.R. Sethi, learned counsel for the petitioners, was that on facts of this case the respondents are guilty of contempt and there can be no two opinions about it, whereas the theme of arguments of Shri Ram Jethmalani, learned counsel for respondent No. I was that respondent No. 1 is not guilty of any contempt inasmuch as all he had done is to reproduce the contents of his judgment in the interviews and since we do not have the system of trial by jury, no prejudice could be caused and that the repetition of what has already appeared in the Judgment of respondent No. 1 can, in no case, result in more prejudice than that the judgment itself was capable of causing ; that since the law of contempt is not codified and the courts have by and large gone by precedents and since we do not have the precedent of a kind it may not be stretched any further ; that since the intention was to educate the public on a topic of great public importance it cannot squarely fall within the purview of contempt and since the interviews were given in a matter of great public importance the court may drop it as otherwise it is likely to be counter productive. The main theme of arguments of Sodi Teja Singh was that the proceedings are without jurisidiction, as these have been filed by a private person who has not sought the consent in writing from the advocate General as required by Section 10(b) of Contempt of Court Act. On facts he is one with the learned counsel for the petitioner that the act of the respondents amounts to contempt. The main theme of the arguments of the interveners was that respondent No. 1 is not guilty of breach of any provision of law because as a free citizen of India he had only participated in a discussion on a topic of national importance which it was his duty as a free public spirited citizen.
(9) We may take the last argument advanced on behalf of the interveners for consideration first. It will be seen from the interview given to Doordarshan that the answers given by respondent No. 1 to questions No. 2 and 3 definitely relate to the case in which the petitioner, his brother and mother were sentenced to death. The same is the ease in the interviews granted to Indian Express Dinman, NavBharat Times and Sarita which were given by him from time to time last being to Sarita towards the end of July. It will also be seen that immediately after pronouncing the judgment the respondent No.1 found it necessary to give these interviews and, the sustained manner in which he has done so clearly goes to show that he was out to build public support for what he had done. These cannot be said to be interviews which can create an atmosphere conducive to the administration of justice. Such statements are bound not only to create difficulties in the administration of justice but also to destroy the whole system. Under such circumstances people have a right to raise their eye-brows in support of their doubts as to who, if any, was right and dispassionate in deciding the case and, this feeling in the minds of the people will inevitably result in putting the judges at trial. We do not find any reason for a judge to go to the public for seeking support for his judgment. After all judgments are delivered on the basis of material on record. In Doordarshan interview the answers to Questions No. 2 and 3 and interviews granted to reporters of other magazines are definitely such which have the capacity to generate an atmosphere of prejudice against the accused and to make it difficult for the higher courts to deal with the case. The fact that it has not actually interfered or prejudiced the court in dealing with the case is not material. What is important is that in spite of pending trial respondent No.1 found it necessary to make a sustained effort through the media of press etc. to build public support for his judgment.
(10) We can understand a situation where a judge in exercise of his fundamental right of freedom of speech speaks on topics of national importance but we cannot countenance a situation of a judge going to propagate his views in respect of a pending case in which he has pronounced a judgment. Such a conduct on his part is bound to shake the confidence of the people in his capacity to do justice and will have the effect of interfering with the duties as law and Constitution expects this court to discharge. It cannot be denied that one of most valuable rights of our citizens is to get a fair and impartial trial free from an atmosphere of prejudice. This right flows necessarily from Article 21 of the Constitution which makes it obligatory upon the State not to deprive any person of his life or personal liberty except according to the procedures established bylaw. It is, therefore, obligatory on all the citizens that while exercising their right they must keep in view the obligation cast upon them. If accused have a right to a fair trial them it necessarily follows that they have a right October tried in an atmosphere free from prejudice or else the trial may be vitiated on this ground alone. We see no merit in the contention of respondent No. 1 that after pronouncing the judgment he had a right as a free Citizen of India to propagate his views in respect of topics of national importance.
(11) The interviews in fact would show that he has given these in respect of a pending case and these do not pertain to any particular topic. Under these circumstances, we fail to understand as to how Article 19 can be invoked. Article 19, in so far as the contempt of court is concerned, has placed a restriction upon the exercise of the right. To our mind, any violation of that restriction would by itself amount to a violation of Article 19 of the Constitution. In the case of a judge, the situation is a little different. Respondent No. 1 has accepted the post of judicial character by choice and by accepting to be a part of judiciary he has also undertaken to impose upon himself certain restrictions and these self-imposed restrictions have since long been recognized as a necessary adjunct of the office. It is, therefore, a recognized principle that in deference to the judicial propriety a judge must conduct himself in such a manner so as to avoid becoming a target of public controversy. We are, therefore, of the view that in a case like this no protection is available to a contemner under Article 19 of the Constitution. This would show that no citizen has a right to make use of Article 19 in a manner so as to bring the Contempt of Courts Act into action and if this right is restricted in respect of an average citizen, we fail to understand how it is available to a judge in an unrestricted form. An officer of the Government, whatsoever his position, is required to implement the policies of the Government but the position of a judge is different. A judge is an officer of the State and has certain limitations and has no policy of his own.
(12) There can be no doubt that a judge is within his rights to speak oil topics of national importance and while doing so he can bring in all his experience to educate the general public but to say that a judge can speak on pending matters would be an entirely wrong proposition of law fraught with very serious consequences. If a judge goes talking about pending matters in this manner he is likely to forfeit the confidence of the litigant public. All actions of judge are also subject to public scrutiny and it is impossible to conceive of a situation where judges a.e left free to behave in public like any other person.
(13) Next we take up the arguments advanced by Shri Ram Jethmalani learned counsel for respondent No. 1. In the first place it was suggested that these proceedings are in the nature of quasi-criminal proceedings and unless the person who interviewed submits an affidavit the version he publishes should not be assumed to be true and that in the absence of such affidavit respondent's affidavit has got to be accepted as there is no evidence to the contrary. We do not find ourselves in agreement with this argument for the simple reason that the affidavit of the respondent only says that the interview given by him to the magazines mentioned above did not represent the true version of the interview and have been flavoured. The interviews given to press on 28th and 29th of May 1983 and also the interview given by him to Doordarshan are admitted by the respondent No. 1 to be correct. It was also contended that all that the respondent No. 1 has done is to go press and Doordarshan and speak on a topic of national importance and that he has only reproduced what was already in the judgment and it could not result in more prejudice than the judgment itself was capable of causing.
(14) We have already dealt with this aspect of the matter. To reiterate it may be said that after pronouncing the judgment it was none of the .business of respondent No. 1 either to go to the press or to Doordarshan. What is more important is that on various occasions he has made a sustained effort to go to the media and talk in respect of the facts and merits of this particular case, the criminality, the preplanning and the motive of the accused. It would therefore be wrong to say that interviews were not capable of causing damage and have no tendency to cause prejudice. It will also be seen that this has been done by him immediately after handing down the Judgment. It will further be seen that in doing so he has highlighted only one side of the case. Journalists can indeed discharge their lawful duties by commenting and writing on topics of national and public importance but it should be done without offering comments about the truth or falsity of rivals version of an occurrence. What is offensive in the interviews from our point of view is the conduct that there is an assumption concerning the guilt of the accused in regard to the offence which is admittedly subjudice. The reasons for desisting from so doing is that such behavior has the tendency to cause prejudice and sometimes their objective is to deprive the Court of the power of doing what it exists for, namely, to administer justice duly and impartially with reference to the facts and the material placed before it. If a journalist goes in praise of the order of a Judge he does so as it fits in within his own line of thinking. But showering praise on a judgment while its confirmation was subjudice would certainly amount to creating prejudice in the mind of the general public and would make the task of the court very difficult. In such a case if the High Court comes to a different conclusion it will be faced with an additional burden of dispelling the impression from the public mind that the approach adopted by the lower court was correct. The kind and quality of interviews given by respondent No. 1 show, that his zeal to focus the attention of the public upon himself and to make a history has outweighed his duty as a judge. It is now a well established principle consistently recognized by courts that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the law and courts and the image of such majesty in the minds of the public cannot be allowed to be distorted. The action for contempt is aimed at the protection of freedom of individuals and the orderly and equal administration of justice.
(15) Next it was argued by Shri Ram Jethmalani learned counsel for respondent No. 1 that the Indian statute in respect of publishing of judgment has made a departure inasmuch as Section 4 of the Contempt of Courts Act has rendered the publication previleged. We may, therefore, make a reference to Section 4 of Contempt of Courts Act 1971 which reads : Fair And Accurate Report Of Judicial Proceeding Not Contempt : "Subject to the provision contained in Section 7, a person shall not be guilty of contempt of court for publishing the fair and accurate report of judicial proceeding or any stage thereof".
(16) On a careful consideration of the argument we do not agree with the argument that the case under consideration is protected in view of the protection made available by Section 4. It would be seen that the section gives protection to fair and accurate report of judicial proceedings and says nothing beyond that. In the first place, the words "Judicial Proceeding" appearing in this section have to be given a restricted meaning. Reading Section 4 with the provisions of Section 7 of the Contempt of Courts Act 1971 it is clear that what is meant by the words "Judicial proceeding" is day to day proceedings of the court. Assuming though not granting that it is capable of a wider construction, it only permits a publication of "far and accurate" report of a Judicial Proceeding". The media reports under consideration certainly do not represent a fair and accurate report thereof. It is absolutely a one-sided picture.
(17) In his usual eloquent manner Shri Ram Jethmalani, learned counsel for respondent No. I has pleaded that prejudicing man kind has long ceased to be a ground for the contempt ; that it was a law only during the days when the jurors had to be drawn from the public for trial of cases and that it has no relevance to judicial proceedings particularly when no witnesses have to be examined. This argument is based on the assumption that judges are not likely to be influenced by such publications and it shall be presumed that no prejudice has been caused. We are grateful to Mr.Ram Jethalani for the amount of confidence he thinks the citizens of India repose in us. We do not want to highlight our capacity to face such situations. The suggestion can simply be thrown over-board as neither the Constitution nor law has authorised a trial by the press. We want to make it clear that the facts as to whether it has caused actual prejudice or not is not a material consideration. It is impossible to agree with the argument in view of the settled law on the subject. The issue raised before us has since been settled by the Supreme Court in Re : P.C. Sen, Appellant (Criminal Appeal No. 119 of 1966) , at
paras 14 and 17 which is as follows :- "14. Counsel for the Chief Minister contended, relying upon certain judgments of the Courts in the United Kingdom, that in cases where the trial of a case is held without the aid of a jury, comments on matters in dispute in a pending proceeding or criticism of the parties thereto, will not amount to interference with the administration of justice. Courts seek to punish acts or conduct calculated to interference with the administration of justice : and we are unable to held that when the trial of a case is held by a judge without the aid of a jury no contempt by interfering with the administration of justice: maybe committed. The foundation of the jurisdiction lies not merely in the effect which comments on a pending proceeding may have upon the minds of the jury, but the pernicious consequences which result from the conduct of the contemner, who by vilification, or abuse of a party seeks to hold up a party to public reidicule, obloquy, censure or contempt or by comment on his case seeks to prejudge the issue pending before the Court. We are unable to agree that where a trial of a case is held in the Court of First instance, without a Jury, or before a Court of Appeal persons so inclined are free to 171 make comments on pending proceedings or to abuse parties thereto without any protection from the Court. It is difficult to accept the contention that comments which are likely to interfere with the due administration of justice by holding up a party to a proceeding to ridicule or to create an atmosphere against him in the public mind against his cause when the trial is held without the aid of a jury do not amount to contempt. If a party to the proceeding is likely to be deterred from prosecuting his proceeding of people who have similar cause are likely to be dissuaded from initiating proceedings contempt of Court would be committed. It matters little Whether the trial is with the aid of the jury of without the aid of jury. No distinction is, in our Judgment, warranted that comment on a pending case or abuse of a party may amount to contempt when the case is friable with the aid of a jury and not when it is friable by a judge or judges."
(18) From our point of view, therefore, these observations of the Supreme Court clinch the issue. The law on the subject is settled and the only touch-stone on which such publications are to be tested is to find Whether a publication has a tendency to cause prejudice and in this case we have seen it does have such tendency.
(19) We had also the benefit of assistance of Shri Soli Sorabjee's views in the matter. He addressed us on a limited point that discussion in general terms of a Judgment which involves an issue of social or national importance whether by way of vindication or criticism should not be construed to be a contempt and, contempt power should not be used to freeze the right of debate and discussion which is the very essence of a free and democratic society. He is of the view that pungency of an appeal or further proceedings does not deprive a citizen of his fundamental right to speech of expression provided the discussion or criticism is bonafide and is not a trial by press in the same way as a hearing in a Court of law. Our attention was invited to certain extracts from the book entitled "Judges on Trial" by Shimon Shetrect and edited by Gordon J. Borrie to indicate that even for judges it is permissible to carve out an area of extra-judicial activities. The entire effort of Mr. Soli Sorabjee was to stress the importance of the fact that there may be effusions involving matters of great national importance where certain amount of fair criticism of judgments will become a necessary requirement and as such for a harmonious working of Articles 19 and 21 of the Constitution of India the use of contempt jurisdiction should be restricted. We are grateful to Mr. Soli Sorabjee for having found time to assist us in this regard. His feelings in respect of the points raised by him are the outcome of the sincerity of approach to the problem. However, since we have already dealt with this point in this judgment, we find that in view of the peculiar facts and circumstances of this case no further comments are needed. We further feel that certain amount of criticism of the performance of judges may be permissible but that will have to be judged in the light of the facts and circumstances of each case and also keeping in view the setting in which these are made, the intention of the maker and impact 172 of the comments on the proceedings. The subject and the nature of criticism will also be material. The other important consideration would be the status and stature of the person making such comments. As we have said earlier, in so far as this case is concerned, the comments made in the repeated interviews to the news media and DoorDarshan by none other than the judge who decided the case, to our mind, are neither fair nor warranted by the occasion, especially when the case was sub-judice.
(20) Next we may turn to the argument of Mr. Sodhi Teja Singh, counsel for the State. His objection to these proceedings is based on his construction of Section 15 of the Contempt of Courts Act whereby unless the Court proceedings on its own motion or on a motion made by the Advocate General, any contempt proceedings initiated by any other person can only be moved by such person with the consent in writing of Advocate General or the Law Officer duly appointed by the Union Territory, we however, do not agree with his contention and in this regard we are supported by the view taken by a Full Bench of Karnataka High Court in S.N.Nagaraja Rao v. Chikkachennappa and others (1981 Cri. Law Journal P. 43) wherein it has been held :- "Article 215 of the Constitution confers on every High Court the Power to Punish for contempt of itself. This power is wide enough to cover cases of act or omission which amounts to contempt of High Court. Therefore whether contempt of High Court alleged to have been committed by any one is of the description referred to in Section 14 or Section 15 of the Contempt of Courts Act, it is competent for the High Court to punish the alleged contemner in exercise of its power under that Article. Such an action could be taken by the High Court under Art. 215 either on its own motion or securing information in whatever manner or on a motion made by the Advocate General or by any other person. Consent of the Advocate General is not contemplated by the Article for a motion made by any other person. 1971 Cri. L.J. 844 (SC) Ref. to. Even after the enactment of the Contempt of Courts Act, the Power of the High Court to punish for contempt of itself, continues to be derived from and traceable only to Art. 215, and therefore a provision in an enactment made by the Legislature to regulate contempt actions cannot be so construed as to affect the Content of the Power given to the High Court under the Constitution. Therefore, Section 15(1) providing for the consent of the Advocate General cannot be construed as mandatory as the power of the High Court to punish for criminal contempt of itself is conferred on it by Art. 215 without any such restriction, 1972 Crl. L.J. 643 (SC) and , Rel. on. Further, Section 15(1) is not couched in
negative language stating that no motion by a person (other than the AdvocateGeneral) shall be entertained by the High Court without the consent of the Advocate General. The Legislative intent or its reason 173 also does not justify the construction that it is mandatory. The purpose of the provision is only to prevent the abuse of the process of the Court by unscrupulous persons by filing frivolous petitions. There might be cases where having regard to the facts and circumstances, the High Court is satisfied that there is a prima-facie case for initiating action through consent of the Advocate General has not been obtained and that the presentation of the petition is by a person, who has locus standi and bona fide, and there might also be cases, the circumstances of which indicate that the petitioner had good reasons for not approaching the Advocate-General seeking his consent or that the consent has been wrongly refused. Further there might be cases where acts of criminal contempt committed by an alleged contemner is not by way of Public speeches, or writings published in newspaper or books or pamphlets but as in the present case, are within the personal knowledge of an individual, and consequently an action is practicable and also convenient to be allowed to be taken at the instance of the aggrieved person, instead of a suo motu action by the Court. Section 15(1) is certainly not intended to preclude the High Court from entertaining such a petition and compel the High Court to take action suo motu only. Ref. to. By construing Sec. 15(1)(b) as directory
does not mean that the provision should be ignored or that the consent of the Advocate General provided for in Section 15(1) is of no importance at all. A directory provision also must be given due weight and should not be rendered useless. The Court may reject a petition presented without consent of Advocate General or where consent has been refused, in liming. However, if in a given case, the court finds that the petition is bona fide by a person who has locus standi and there are sufficient grounds to take action the Court is not precluded by Section 15(1)(b) to entertain the mation as Section 15(1)(b) of the Act is only directory".
(21) In the present case we are of the view that the petition is bonafide and is made by a person who has full locus standi as he and his brother and mother were the persons who were immediately and seriously affected by the conduct of the contemner. But assuming the provisions of Section 15 of the Contempt of Courts Act are mandatory, We are not inclined to throw out the petition on this technical ground because the issue involved is of tremendous importance. There is nothing to prevent Us from treating it as an action of our own motion and we accordingly order that the petition be treated as one or our own motion.
(22) On behalf of Doordarshan it was argued by Mr. Sabharwal, that. in fact, this interview was recorded by a representative of Doordarshan at the house of respondent No. 1 and that she was not aware of the niceties of law. That, however, does not mitigate the conduct of respondent No. 2. On the basis of all that goes on before us nobody can say that the conduct of respondents has not the capacity or tendency to cause prejudice and 174 damage. The while episode took shape in a manner that it undoubtedly create an atmosphere of prejudice which is amply borne out by the demonstrations that were held after the decision of the case by this Court, and we can neither ignore nor overlook such development. We, are, therefore, of opinion that the conduct of respondents is neither permitted by law nor by justice and in the case if respondent No. 1 apart from the fact that such a conduct on his part is disapproved by law we are of the opinion that his conduct is also violative of judicial propriety which for long has become a necessary adjunct of the office which the judges are holding. The least that can be said is that the conduct of the respondents verges on contempt. Having said so, we leave it there without recording any finding against the respondents. The petition is disposed of accordingly. Aggarwal J. "I have perused the judgment prepared by my brother Malik Sharief-ud-Din, J. and I entirely agree in his reasoning and conclusion. I feel the need to express myself."
(23) This is a singular case and has no parallel in the judicial precedents where a Judge after delivering a sentence of death to three persons including a woman aged 53 chose, immediately thereafter, to grant interviews to he press and Doordarshan and talked on the facts of the case. His talk recorded by Doordarshan was televised on 11th and 18th July 1983. He granted interviews to the reporters of Indian Express, Dinman, NavBharat Times, Sarita and India 2000. The aforesaid newspapers and magazines published the interviews with photograph of Mr. S.M. Aggarwal, respectively, on 29th May 1983, 12th June 1983, 6th July 1983, October and August 1983. The fortnightly magazine Sarita had published the interview in October 1983. The hearing of the case in the High Court commenced on 4th October 1983. Mr. S.M. Aggarwal in his affidavit dated 24th November 1983 has stated that he had granted the interview to the reporter of Sarita magazine towards the end of July 1983. We accept this statement of Mr. Aggarwal. The petitioner had brought to our notice about the interview granted to Sarita magazine in the rejoinder filed on 7th November 1983. The petitioner, obviously, could not have known about the publication of the interview in Sarita at the time of the filing of the petition as the said interview was published only in the issue of October 1983. The magazine India 2000 was filed by their publishers who filed an application for permission to intervene.
(24) My brother has reproduced in extenso the interview given by Mr. S.M. Aggarwal, Additional Sessions Judge, to Door Darshan and I need not recapitulate it. A bare reading of all the interviews granted and published by the various magazines and other media would show that Mr.Aggarwal spoke on the facts of the case and painted all the accused as worst criminals-deserving the extreme penalty of death. Mr. Aggarwal depicted the investigating officer and the doctor as conspirators in fabricating evidence.
(25) It is not disputed that the above interviews were given when the reference for confirmation of death sentence and the appeal filed by the accused were pending in the High Court. The important question arises whether the Additional Sessions Judge after delivering the judgment and during the pendency of the criminal proceedings in the High Court was within his rights to go to the media and Door Darshan and express his views on the case knowing fully well that the case is pending in the High Court. Mr.Jethmalani for Mr. S.M. Aggarwal contended that the various interviews granted by Mr. S.M. Aggarwal would be a fair report of the proceedings in Court including the judgment and, therefore, he is protected by Section 4 of the Contempt of Courts Act. Mr. Jethmalani contended that what he had talked in the various interviews was merely - a repetition of what he had observed and held in the judgment and, therefore, no judicial impropriety is involved. Mr. Jethmalani went to the length of contending that even if people had chosen to sing songs in the praise of the judgment no contempt of judicial impropriety would be involved. I do not agree in these contentions. Section 4 only protects a fair and accurate report of a proceeding in a Court. The media was well within its right to publish a fair and accurate report of the judgment delivered by Mr. S.M. Aggarwal. The reporting of the subsequent interviews can, by no stretch of imagination, be called a report relating to proceedings in a Court. Section 2(c)(ii) clearly provides that any publication (whether by words, spoken or written, or by signs or by visible representation or otherwise) of any matter or the doing of any other act whatsoever which prejudices or interferences or tends to interfere with the due course of any judicial proceedings is a criminal contempt.
(26) The reference made by the Additional Sessions Judge for confirmation of the sentence of death was pending in the High Cour at all the relevant times. Section 368 of the Code of Criminal Procedure provides that in any case submitted under Section 366, the High Court (a) may confirm the sentence, or pass any other sentence warranted by law, or (b) may annul the conviction, and convict the accused of any offence of which the Court of Session might have convicted him, or order a new trial on the same or an amended charge, or (c) may acquit the accused persons. The proviso to Section 368 provides that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired oi. if an appeal is presented within such period, until such appeal is disposed of. From a reading of the above provision it is clear that in a case of reference under Section 366 the High Court notwithstanding whether any appeal is filed or not by the accused has to examine the entire record and thereafter either confirm the sentence or pass any other sentence warranted by law or acquit the accused persons. Surely, Mr. S.M. Aggarwal knew the implications of a reference for confirmation of the sentence of death. The framers of the Contempt of Courts Act have wisely prohibited the publication in any manner of any matter or the doing of any other act which could have the effect of prejudicing or interfering or tending to interfere with the due course of any judicial proceedings. The reason is not far to see. The sole purpose being that no prejudice or bias is created in the mind of a court that may prevent it to precede with the proceedings in an atmosphere completely free from bias and prejudice.
(27) Mr. S.M. Aggarwal, the learned Additional Sessions Judge, in his judgment has characterised the three accused as worst criminals who for the agreed of money had, pursuant to a pre-plan, burn t Sudha. Mr S.M.Aggarwal in the various interviews granted by him has branded the accused in the same strain. There can be little doubt that the said utterances had created a prejudice. in the mind of the public against all the three accused even before the reference and the appeal filed by the accused were heard by the High Court. The accused in the eyes of the public stood condemned without their being finally found guilty. This case clearly evidences the prejudice caused because even after the High Court has found them "not guilty", the prejudice built up earlier continues and they are still considered by the general public as guilty. It cannot be overlooked that after the High Court pronounced the judgment there were demonstrations right in the precincts of the High Court. The demonstrations obviously show that the public feels that the judgment is not correct and the guilty persons have been freed. It is impossible to dispel this impression from the mind of the public. This, to my mind, is the effect of the public opinion built up by the media because of the extensive reporting of the various interviews to the media by Shri Aggarwal. To my mind, the prejudice caused is So great that it cannot be undone now.
(28) Mr. S.M. Aggarwal in his reply contended that he was within his rights to go to the press and to the television to propagate just views which were literary and honorary in character and further that as a citizen of this great country and on being approached by the free media it was his duty to participate in a healthy discussion on a topic in the larger interest of the society and that by giving interviews he only exercised his right to freedom of speech and that simply by being saddled with the duties of a Judge he does not cease to be a free citizen.
(29) To my mind, in the above assertion Mr. S.M. Aggarwal has remembered the rights but forgotten the duties imposed on a Judge. Mr.Aggarwal seems to be labouring under an impression that after the sheds the robes of office he becomes free from all the restraints that the office of a Judge imposes on him and he is free to participate in any kind of extrajudicial activity. I am afraid this is 'not so. Mr. Aggarwal continues to be a Judge till he retires. He has to regulate his extra-judicial activites in a manner that they do not come into conflict with his judicial duties.
(30) The learned counsel for the interveners contended that Article 19 of the Constitution of India guarantees freedom of speech and the right of a Judge to speak on any matter of national importance cannot be curtailed or snatched away from him. The right to freedom of speech and expression guaranteed by Article 19(1) has to be exercised subject to the limitations laid down in Article 19(2) of the Constitution and the other Articles. Article 21 provides that no person shall be deprived of his life and liberty except according to procedure established by law. The petitioner as well as his co-accused have a right to a fair trial. If anything done or said by any citizen impinges on the said right of an accused the protection of Article 19 cannot be invoked.
(31) Drinker on Ethics has tabulated 7 canone of Code of Judicial Conduct, We reproduced them :- 177 Cannon 1 A Judge should uphold the integrity and independence of the judiciary. Cannon 2 A Judge should avoid impropriety and the appearance of impropriety in all his activities. Cannon 3 A Judge should perform the duties of his office impartially and diligently. Cannon 4 A Judge may engage in activities to improve the law, the legal system, and the administration of justice. Cannon 5 A Judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties. Cannon 6 A Judge should regularly file reports of compensation received for quasi-judicial and extra-judicial activities. Cannon 7 A Judge should refrain from political activity inappropriate to his judicial office.
(32) In my view, the interviews given by Mr. S.M. Aggarwal and widely published do come into conflict with his judicial duties. A litigant can also lose faith in his impartiality. Justice must not only be done but must also seem to be done. Till Mr. Aggarwal continues to be a Judge he will be dealing with a number of cases similar to the one in question. After Mr. Aggarwal has expressed his views so strongly on this subject I fail to see how any accused in a case like the one before us will have faith and confidence that he would get justice.
(33) In my view, the Contempt of Courts Act, 1971 has struck a proper balance between the right of the public to be kept informed and the right of the individual to a fair and impartial trial. Section 4 gives the right to publish a fair and accurate report of judicial proceedings or any stage thereof. Section 5 gives a right to a person to publish any fair comment on the merits of any case which has been heard and finally decided. Section 2 defines the civil contempt and the criminal contempt and lays down the limitations on the right of publication qua a pending judicial proceeding.
(34) We had to embark on an enquiry into this thorny and delicate question because of the stand taken by Mr.S.M Aggarwal his reply has become necessary for future guidance. Mr. Jethmalani wanted us to Mr. S.M. Aggarwal had given the interviews, but we feel it is necessary to speak on this issue for is has vital relation to the right of an accused to a fair trail.
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