8. In the peculiar situation arising in this case where the High Court can only put off posting the case if it is not to hear it and in view of the unequivocal views expressed by the petitioner and the Advocate General that we do hear the case we have heard the matter. We have agreed to that course since Sri Vincent Panikulangara told us, and we agree, that what is really involved is an academic exercise, an exercise intended to define the contours of permissible criticism. The rule that no judge shall hear the case in which he is likely to be biased is a rule well established, a rule which can bear no exception. Bias is more than likely to arise by reason of acquaintance with a party to the action. Even if Judges, by their judicial training and maturity are able to deal with cases objectively, to the common man whose confidence in the judicial process should not be permitted to be eroded, it may appear that the ultimate judgment in any such case was influenced by matters extraneous to the facts of the case. Hence larger interests, that of retaining confidence in the Judicial system should dissuade this court from taking up the case. But faced with an unparalleled situation, when there is no other alternative, we have posted the case.
9. We have been at pains to indicate that the nature of the exercise called for in the case the nature of the interest of the petitioner, the unique circumstances of the case which have been referred to and finally the consent of all concerned that this Court may hear the matter was really it is an academic exercise that is involved has persuaded us to adopt a course which we normally would not have adopted in any case. We believe that our approach will not be understood as laying down a precedent, recognizing an exception to the rule that a Judge should not hear the case of a party known to him. The case before us is really not one of an exception, but the application of a unique but new rule, the adoption of which is justified because of the equally unique circumstances of the case.
10. An erudite Judge illumines the pages of law reports. He earns the respect and admiration of the members of the bar and the bench. The legal fraternity may remember him as his reputation survives to posterity. But rarely in such a Judge widely known outside the world of law. Erudition coupled with a honest missionery zeal in the cause of social uplift gives a different image to a Judge and makes him live not only in the book of law but also in the beans of men. Sri V.R. Krishna Iyer is known and respected by the public of this country. His tenure of office as a Judge of this Court, later as a member of the Law Commission and finally as a Judge of the Supreme Court has been marked by a distinction that singles him out from the rest of his colleagues. His decisions evince a new approach to law and new rule for the Judge. Many a good Judge has come and gone having performed his duty with dedication and immigrate, as good Judges are expected to do, leaving a mark of his own and imprint of his individuality but giving no room for anyone to raise his eyebrows at him at any time on account of infringement of traditional behaviour and infringing status quo decorum. While leaving a distinct mark of his personality in all that he did Sri V. R. Krishna Iyer did challenge established traditional values and approaches and opened new vistas of thought arid action to promote the social engineering process in this country. We do not propose to say more lest it may appear that called upon to assess the objectionable element, if any, in Shri V. R. Krishna Iyer's speech we have been overawed by the importance, if not greatness of the man and consequently there has been some distortion in our decision making process. We have mentioned, about him here, in brief, referring only to absolute essentials, as his speech cannot be adjudged without the background of the man, his possible interest in making the statements and of how people are likely to react to such statements.
11. Contempt may be committed by a person by willfully disobeying the order of process of Court or willfully committing breach of undertaking given to court. Mere disobedience or breach, as the case may be, will not be sufficient to find contempt. Willfulness will have to be found on the facts and circumstances. Once that is found the court must take serious notice of the contemner's conduct. The order, even erroneous it be, calls for compliance and there can then be no excuse. The contempt in such a case will be civil contempt.
12. Criminal contempt operates when the act of the alleged contemner prejudices or interferes or tends to interfere with, the due course of any judicial proceedings. Such conduct will have to be viewed severely particularly because of its tendency to affect the ultimate decision in the case. A case is to be tried in court and not outside it. Sometimes comments or statements are made inadvertently and without the knowledge of pending proceedings in court or without intention to effect the result of such proceedings, but even so technically the contemner's conduct would be objectionable, but the circumstances may persuade a court to view such conduct lightly. But not so where, a party, aware of a pending case and aware of the consequences of his statement, deliberately makes his comments. The circumstances in that event would aggravate the offence. If such comments arc from responsible persons or those placed in authority it is likely that the harm is greater and aggravation would also be of a much higher degree.
13. The comments with which we are concerned in this case do not fall within either of the categories adverted to above. It is said to fall within objectionable criticism of courts. Criticism or comment upon courts, Judges or the judicial system may amount to scandalising the court or may tend to scandalize the court and that would be objectionable. Lowering of the authority of the court or tending to lower the authority of the court would also fall within this category. This class of contempt stands on a different footing and therefore courts, called upon to consider any alleged case of such contempt will have to make a different approach. That is because criticism of courts, within permissible limits, should not be taken to lower the authority of the courts or to scandalise them. In a democratic age no institution should be beyond the reach of honest criticism. The courts are no exception. While commenting on the functioning of courts, on the working of the judicial machinery, advent and unpalatable criticism is as likely as offer of bouquets for the excellence of its performance. The courts should not feel elated by complements offered or be embarrassed by adverse criticisms. Of course all criticisms cannot be said to be honest or genuine. The context and setting in which such criticism is made the person who makes it and the persons to whom it is addressed should, in a large measure, indicate the apparent purpose or subject of the criticism, whether it was made with genuine academic interest or whether it is made for any extrados purpose.
14. The principle thus stated can be illustrated by instances. Take a case where one of the sitting Judge of this Court is invited to deliver a keynote address at an important seminar on 'Courts' Delays and Arrears in Courts.' He would be able to make a positive contribution only by a thorough, and objective study of the problem and its proper presentation. He may have to comment on the effectiveness of the courts as they function today and the dangers that the judicial system in this country may have to face if urgent attention is not immediately paid to the courts' problems. An honest exposition is called for and that may necessitate disclosures as to what extent the courts have lost credibility so far. The message has to be conveyed effectively and forcefully and in that process could the Judge be said to have scandalised the courts or tended to lower their authority? A Judge called upon to lead a discussion at a symposium on the high cost of litigation and the plight of the poor litigant" may have occasion to deal harshly with the absence of legal aid legislation or legal aid schemes of sufficient reach. That, despite the provision in the directive principles, in Article 39A of the Constitution, the poor man's cause suffers vitally may be a comment upon the existing system of dispensation of justice, but in a Symporium seriously got up this matter ought to find forceful expression so that, appropriate legal aid schemes may be drawn up. We need not multiply illustrations or examples. Suffice to say that as we pointed out earlier, who, why, where, in regard to the impugned statements would be of materials relevance.
15. There is an ocean of difference between well-informed and ill-informed criticism. Those who have spent years and perhaps a lifetime as part of an institution or to study an institution may have occasion to make a thorough objective assessment of that institution. What they say in regard to a matter concerning that institution should be viewed difficulty from a similar statement by an uniformed person. In one case there is objectively and in the other there is none. Absence of objectivity must necessarily reflect upon the bona fides of the criticism.
16. It will be useful to refer to the views expressed by the Judges of the Court of Appeal in England in the famous case R. v. Commissioner of Police of the Metronolis. Ex. Parts Blackburn. The court was considering the plea of contempt in relation to an article by Mr. Qaintin Hogg in 'Punch' critically commenting on a judgment of the Court of Appeal. Lord Denning H.R. said in that case thus:
"It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise more particularly as we ourselves have an interest in the matter.
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, not do we resent 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 out 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 controversy. Still less into political controversy, we must rely on our conduct itself to be 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 following observations of Salmon L. J. in the same case may now be read: "The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism, even from the criticism of Mr. Qaintine Hogg. Their judgments, which can, I think, safely be left to take care of themselves, are often of considerable public importance. It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty freedom of speech which our courts have always unfailingly upheld. It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of however rumbastious, however wide of the mark, whether expres3ed in good taste or in bad taste, seems to me to be well within those limits.
Edmund Davies L.J. in the same case said:
Doubtless it is desirable that critics should, first, be accurate and, secondly, be fair, and that they will particularly remember and be alive to that desirability if those they would attack have in the ordinary course, no means of defending themselves.
17. A Division Bench of this Court had occasion to consider the contours of contempt in a case of criticism of the Courts in Vincent and others v. Gopala Kurup. This Court said in that case thus:
"In a democracy fair criticism of the working of the organs of the State should be welcome and would in fact promote the interests of democratic functioning. Section 5 of the Act, evidently enacted with a view to secure this right, provides that a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. This does not mean that the right to commit for any contempt by scandalising the court has become obsolete. The question would still be whether the publication alleged to be offending is by way of fair comment on the merits of the case. Comment not made honestly and in good faith would not be fair comment. Comment not intended to promote public interest could not be fair comment.
When accuracy of the law laid down by then in their decisions should be the object of fearless scrutiny. Such freedom to criticize is essential if the high quality of judicial administration is to be maintained." (Freedom, the Individual and the Law by Harry Street at P. 167-168).
If reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat as contempt of Court" (A.I.R. 1936 P.C./141).
Speaking of the English Law of contempt of court Prof. Harold L.J. Laski in "Studies in law and Politics" quoted the views of Justice Holmes that the boundaries to the expression of opinion ought only to be set by the imminent danger of public disorder. We will quote the passage here:
"It is unnecessary here generally to argue the case for a wide freedom to criticise in a democratic state. Its corollary is the clear inference, insisted upon by Mr. Justice Holmes in a classic opinion that the boundaries to the expression of opinion ought only to be set by the imminent danger of public disorder. Against such a canon the present English procedure seriously offends.
While the privilege of Parliament would leave its members free to speak strongly upon matters concerning the judiciary all other persons who, even from the highest motives, may choose to criticize the courts, find the scales heavily weighted against them. For, as has been argued there is an inevitable corporate interest in the judiciary which makes it difficult for them to act independently and impartially in cases of this kind." (At p. 234) Courts should not be over sensitive to criticism. The jurisdiction in contempt is not to be involved unless the case is clear and beyond reasonable doubt. Even so a critism which imputes improper and dishonest motives has necessarily to be regarded seriously."
Para 18. Now we will come to the controversial speech by Justice V.R. Krishna Iyer. The symposium on "Approach to Judicial Reforms" was organized for an academic discussion on a topic of current interest particularly to the members of the Bar and the Bench. The symposium was held in the High Court premises. It was attended particularly by those who are concerned with the courts and the judiciary. On the occasion Sri V. R. Krishna Iyer, as a main speaker invited to speak on the subject, was expected to make an academic exercise on the subject. Sri Krishna Iyer had, apart from his learning a wealth of experience which evidently qualified him to speak authoritatively on the subject. His contribution as a Judge, as a member of the Law Commission and as a powerful proponent of the cause of judicial reforms is well known. It is in this background that the statements made by him in his speech should be understood. By pointing out the weak spots in the judicial system and alerting the people to the need for a change lest the people as a whole reject the system, Justice Iyer was alerting his audience to bestow serious attention to the problem. The comments made by him are not of a person who is vituperative or who wants to bring into disrepute the judicial system of this country, but of one who was exporting the people for revolutionary change in the outlook concerning problems of the judiciary. Judged in the perspective of what have explained earlier we see no reason to consider his criticism, coming as it does from a person whose bona fides in the cause of judiciary is not open to doubt, as mala fide or dishonest.
19. In the circumstances we find no reason to issue notice on his motion. We see no reason to call upon Sri V. R. Krishna Iyer to answer any charge of contempt. The petition is closed.
Petition closed.
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CHAPTER 21 : RELIEF THROUGH STATUTORY ESTABLISHED COMMISSIONS
= Relief without regular Petitions, Advocates and Date of Hearings.
1. There are very rare cases, in which only two individuals are parties. As soon as there is a dispute between both of them, either Police will be called or a Civil Suit will have to be filed; in either case, the Government is also becoming one of the parties. Some times, there will be only one Private Individual and the other will be Government like not getting Drinking Water, Electricity, Treatments etc.
2. So long as the Government is behaving reasonable through it's officials; that will be impartial and the relief will be given. Very rarely a Private Individual, who had been doing a Wrong Litigation, will file an Appeal or will complaint against the Judge of the Trial Court. That is the reason, why a lot of people are willing to compromise, without any tears. They know that, they are also at fault.
3. However, sometimes, the Government will refuse to behave reasonably. To go to another extent, some times even God do not behave reasonably and suffer injustice. Examples are: (1) At the time of Birth of God Krishna, his own Maternal Uncle Kansa had already killed many of his elder siblings. (2) God Krishna's efforts to get Pandavas, their Legal Rights had been denied by Kauravas, and he had been insulted. (3) Jesus Christ's birth also suffered similar dangers. And (4) God Rama's wife Sita Devi had been Abducted by Ravana, and had to remain under captivation for a lot of years. It may kindly be noted that, all such Injustices suffered by the God/ in-carnations/ Avatars had helped to make Histories.
4. Thus, failure of Government Officials to do justice or to behave in an impartial manner will give Cause of action to get work for Advocates, Clerks/ Munshis, Typists, Stenographers etc. To address or redress such grievances, originally there had been only Writ Jurisdiction. One Writ Jurisdiction by the High Court and Supreme Court under Articles 226 and 32 of the Constitution of India, to entire Government, including Subordinate Judiciary; and the Other Writ Jurisdiction only by High Court to the Subordinate Judiciary, under Article 227 of the Constitution of India. Even now the said Jurisdiction continues.
5. The Writ Jurisdiction is exercised only when one of the party is Government, and the Government is duty bound to render justice, only then Writ Petition can be filed. Only when the Facts of the case are not disputed, and only a final decision is to be given, the Writ Jurisdiction can be exercised. Even when one of the party is Government, if the Facts are disputed, the case will be tried in competent Civil or criminal Court and proper evidence will be led, and final decision will be given by the Trial Court. To exercise Writ Jurisdiction, no proper Petition is required and the Petitioner need not be present. A letter can be written, which can be admitted as Writ Petition and the Court will appoint an Advocate in the designation of Amicus Curiae, at Government Expenses, to help in decision of the case. Writ Jurisdiction is King's Jurisdiction. In case of Appeals and Revisions, the High Court or Supreme Court only exercises the Jurisdiction of ordinary Court's in Superior Position. However, while exercising Writ Jurisdiction, it behaves like a King, who can do anything to help it's subject/ citizen. It is a Discretionary remedy and it have no limits other than self restraint.
6. In due course of time, the said Writ Jurisdiction had been permitted to be exercised by Various Commissions duly constituted by various Statutes of Legislature of the Government of India and State Governments. The only difference is, whereas the Writ Jurisdiction of the High Court and Supreme Court have no Limitation, but only “delay and laches”, the Jurisdiction of National Commissions have normal Limitation of 1 year. That is, if within 1 year from the date of occurance of the incident if the complaint is not send to NHRC/ any other National Commission, there is no use to send. However, if there are no “delay and laches”, Writ Petition can be filed. If the Limitation period is not expired under Limitation Act, the Civil Suit or criminal case can be filed.
6.1. MRTP Commission, University Grant Commission, Bar Council of India, Medical Council of India etc there are various quasi-judicial forums.
7. There are a large number of National Commissions, formed under different Statutes. Among them the famous and popular is Human Rights Commission. There are NHRC and State Human Rights Commissions. Besides them there are Various other Commissions, their names and addresses are given below. The Name and Address of NHRC is given in the end, to ensure that, it will not be selected by the Readers of the book, at the first instance. When the complaint is Police Atrocity, the NHRC is the correct forum. For other reliefs, other concerned National Commission or it's State Commission may be selected. Names and addresses:- (1) National Commission for Protection of Child Rights, NCPCR, 5th floor, Chanderlok Building, 36, Janpath, New Delhi. (2) National Commission for Minorities, 5th Floor, Lok Nayak Bhavan, Khan Market, New Delhi 110 003 Tel. 24618349 Fax 24693302, 24642645, 24698410. (3) National Commission for Scheduled Castes, Lok Nayak Bhavan, Khan Market, New Delhi-3. (4) National Commission for Scheduled Tribes, Lok Nayak Bhavan, Khan Market, New Delhi-3. (5) National Commission for Women, 4, Deen Dayal Upadhyaya Marg, New Delhi-2. 91-11-23237166, 91-11-23236988, Fax 91-11-23236154. Complaints Cell : 91-11-23219750. (6) Department for the Welfare of SC/ST/OBC Minorities; Govt of NCT of Delhi, B-Block, 2nd Floor, Vikas Bhawan, IP Estate, New Delhi-2. (7) National Commission for Back-ward classes, Ground Floor, Trikoot-1, Bhikaji Cama Place, Behind Hayatt Regency Hotel, New Delhi-66. (8) Rehabilitation Council of India, B-22, Qutab Institutional Area, New Delhi-16. www.rehabcouncil.nic.in (9) National Commission for Minorities Education. Address: in a Building near Dak Bhawan, Connaught place, New Delhi. (10) National Human Rights Commission, Faridkot House, Copernicus Marg, New Delhi-1. Madad (= Help) Section, for day time complaint:-01123385368. NHRC Night time emergency calling Mobile Number:- 09810298900. At these Commissions, normally relief can be obtained by a Letter, even in a Post Card. No Advocate is necessary. Even when Commission required help of an Advocate, it will appoint an Amicus-curiae = Friend of the Court and the aggrieved Petitioner need not appoint an Advocate and no need to go to Court for each Dates of Hearing.
8. Besides above Commissions, there are also Authorities called President of India, Governer of State, Prime Minister of India, Chief Minister of State, Home Minister of India and States, Defence Minister etc. The SHO/ Circle Inspector of Police, SDM etc Offices also conduct Adalats = Courts for General Public. At all these places also the Grievances are accepted, studied and if necessary, forwarded to concerned Ministry/ Subordinate Officer for Action or Comments. At these places also, without usual Court Hearing and Advocates, the relief is given.
9. What are the types of Complaints or Grievances which are not given relief, at NHRC are given below, to ensure that no money will be wasted to address this type of complaints. Only similar Guide lines will be followed by any other Commissions, being Government's guidelines are same for every type of National Commissions: The NHRC do not issue 'Notice' or give relief, to a Letter/ Complaint/ Petition addressed to it, if the cause of action in that Complaint is hit by any of the following defects. However, if the cause of action is within Limitation Act, 1963; a Civil Suit can be filed in any Civil Court having jurisdiction to get the relief prayed. The reasons for dismissal in limine of the complaints are:-
i). If no allegation is made against any Public Servant, NHRC do not take any action. Meaning of this ground for dismissal is: NHRC will accept a complaint only in two circumstances: (1) One Public Servant had violated your Human Rights and (2) When an ordinary man had been violating your Human Rights, despite proper complaints made, the Public Servant failed to protect your rights.
ii). If the complaint is barred by Section 36(1) of the Protection of Human Rights Act, 1993; the NHRC do not take any action. The said Sub-Section reads: Matters not subject to jurisdiction of the Commission: the Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
iii). If the complaint is barred by Section 36(2) of the Protection of Human Rights Act, 1993; the NHRC do not take any action. The said Sub-Section reads: Matters not subject to jurisdiction of the Commission: the Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been commited.
iv). Allegation of Corruption can be send to the Specific Authorities (Vigilance Officer of same Department, CVC, CBI etc). Thus NHRC will decline to entertain this complaint. It will not even be forwarded to CBI/ CVC etc, but it will be Dismissed in limine and filed.
v). When the matter is pending/ sub-judice before any other Court, NHRC do not take any action.
vi). If the allegations in the complaint do not make out infringement/ violation of any Human Rights, the NHRC do not take any action.
vii). The Petition/ Letter/ Complaint should have adequate particulars, otherwise the NHRC do not take any action. If the complaint is Vague, no action is taken.
viii). The Service matters and labour/ industrial disputes are not entertained by NHRC. However, FOLLOWING TYPES OF DISPUTES OF THIS CATEGORY ARE ENTERTAINED: Non payment of Salary, Pension, Retirement dues and Sexual harassment.
ix). If the cause of action in the complaint is already covered by a Decided case of NHRC or any High Court or Supreme Court Judgments, without any action, said complaint will be filed by NHRC.
x). When the complaint is addressed to the Competent/ Appropriate Authority, who is bound to look into the matter; and only a copy is given to NHRC, the NHRC do not take any action. (However, within reasonable time if the Authority do not give relief, the Cause of action