HARI SINGH NAGRA & ORS.versusKAPIL SIBAL & ORS.

                    [2010] 8 S.C.R. 879


               HARi SINGH NAGRA & ORS.                         A
                             v.
                   KAPIL SIBAL & ORS.
                 (T.C. (Crl.) No. 2 of 1997)
                      JULY 15, 2010
                                                               B
        [J.M. PANCHAL AND A.K. PATNAIK, JJ.]

     Constitution of India, 1950 - Article 215 - Criminal
contempt of court - A message by Senior Advocate-
contemnor - Expressing concern about falling standard of C
legal fraternity - Published in Souvenir of a Literary
Association of Advocates - The message not released to
press - Souvenir not made available for sale - Excerpts from
the message published in Daily News Paper suggesting that
the contemnor-Advocate made frontal attack on judiciary - D
Criminal contempt petition filed before High Court - Transfer
of the petition to Supreme Court - Held: The message
contributed by the advocate-contemnor to the Souvenir does
not bring the administration of justice into disrepute or impair,
within the meaning of 'criminal contempt' u/s. 2 (c ) of E
Contempt of Courts Act - No case of criminal contempt is
made out either against the advocate-contemnor or other
contemnors - Contempt of Courts Act, 1971 - s. 2 ( c ).

     In a Souvenir published by a literary group/
Association of lawyers practicing in Supreme Court, F
various messages, articles, poems etc. were contributed
by members of the Bar and the Hon'ble Judges.
Respondent No. 1, a Senior Advocate also sent a
message to be published in the Souvenir, which
expressed concern about the plight of junior members of G
the Bar and about the falling standards of legal fraternity.
The message was neither released to the press, nor was
the Souvenir made available for sale. It was circulated
only to its members and other members of the Bar.
                            879                              H
    880     SUPREME COURT REPORTS             [2010] 8 S.C.R.


A      Thereafter, when respondent No. 1 filed his
  nomination for contesting the post of President of
  Supreme Court Bar Association, a news item was
  published in the Sunday, Times of India daily wherein
  certain excerpts of the message were reported, which
B suggested that respondent No. 1 made frontal attack on
  the judiciary.

       Petitioner Nos. 1 to 5, the practicing lawyers of
  Punjab and Haryana High Court filed criminal contempt
C of court under Article 215 of the Constitution of India
  against the three respondents alleging that respondent
  No. 1 entered into a conspiracy with respondent Nos. 2
  and 3 to bring administration of justice into disrespect
  which amounted to deliberate interference in the
  administration of justice.
D
       Single Judge of the High Court, after preliminary
  hearing held that allegations against the three
  respondents was criminal contempt. Respondent Nos. 4
  and 5, the editors of the Souvenir of the Literary
E Association were also impleaded as parties at the behest
  of the petitioners.

      The Secretaries of the Literary Association filed
  Transfer Petition in the Supreme Court. The petition was
F allowed and the Contempt Petition was transferred from
  the High Court to the Supreme Court.

       In the instant petition, the question for consideration
  was whether sufficient cause was made out by the
  petitioners to initiate contempt proceedings against the
G respondents.

        Dismissing the Contempt Petition and dropping the
    contempt proceedings, the Court

          HELD: 1. A fair reading of the message sent by
H
 HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 881


respondent No. 1 makes it explicit that the sending and/ A
or publication of the message in the Souvenir of the
Mehfil (Litrary Association) did not scandalize or tend to
scandalize, or lower or tend to lower the authority of any
court nor prejudiced, or interfered or tended to interfere
with the due course of any judicial proceedings; or B
interfered or tended to interfere with or obstructed or
tended to obstruct, the administration of justice in any
other manner, within the meaning of 'criminal contempt'
as defined in Section 2(c) of the Contempt of Courts Act,
1971. The message contributed by respondent No. 1 read c
in its proper prospective, did not bring the administration
of justice into disrepute or impair. Therefore, it must be
held that no criminal contempt was committed or
attempted to be committed by respondent No.1. [Paras 7
and 11] [892-B-D; 898-C)                                    o
     P.N. Duda vs. P. Shiv .Shanker and Ors. (1988) 3 SCC
 167, relied on.

    E. M. Shankaran Namboodiripad vs. T. Narayanan
 Nambiar (1970) 2SCC 325, referred to.                        E

     Ambard vs. Attorney General for Trinidad and Tobago
 1936 AC 322, referred to.

       2. There is no manner of doubt that Judges are
  accountable to the society and their accountability must F
  be judged by their conscience and oath of their office.
  Any criticism about the judicial system or the judges
  which hampers the administration of justice or brings
  administration of justice into ridicule must be prevented.
  The contempt of court proceedings arise out of that G
· attempt. National interest requires that all criticisms of the
  judiciary must be strictly rational and sober and proceed
  from the highest motives without being coloured by any
  partisan spirit or tactics. There is no manner of doubt that
  freedom of expression as contemplated by Article 19(1 )(a) H
    882      SUPREME COURT REPORTS               [2010] 8 S.C.R.


A of the Constitution is available to the Press and to
  criticize a judgment fairly albeit fiercely is no crime but a
  necessary right. A fair and reasonable criticism of a
  judgment which is a public document or which is a public
  act of a Judge concerned with administration of justice
B would not constitute contempt. In fact, such fair and
  reasonable criticism must be encouraged because after
  all no one, much less Judges, can claim infallibility. [Para
  8] [895-C-G]

C         3. In the instant case, the message examined the
    evils prevailing in the judicial system and was written with
    an object to achieve maintenance of purity in the
    administration of justice. The message was exposition of
    ideology of respondent No. 1 and he had shown the
    corrective measures to be adopted to get the institution
D   rid of the shortcomings mentioned by him. In the facts of
    the case, the message sent by respondent No. 1 to be
    published in the Souvenir of the Mehfil (Litrary
    Association) will have to be regarded as fair criticism of
    his senior colleagues for their failure to bring up the
E   Junior Bar and of those members of the Bar who were
    shouting at each other and threatening the Judges. The
    message is nothing but concerns of a senior advocate
    who has practiced for long in Supreme Court and who
    noticed that the public image of the legal community was
F   at its nadir. The article nowhere targets a particular judge.
    This is not a case of an attack on a Judge which is
    scurrilous, offensive, intimidatory or malicious beyond
    condonable limits, in respect of a judgment or his
    conduct. The article is an expression of opinion about an
G   institutional pattern. The article by itself does not affect
    the administration of justice. [Para 8] [895-G-H; 896-A-C]

          Re: Sham Lal AIR 1978 SC 489, relied on.

          Vishwanath vs. E. S. Venkataramaih 1990 Cri.L.J. 2179
H (Born), approved.
                                                              /




HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 883


     4. Scandalising in substance is an attack on                 A
individual Judges or the court as a whole with or without
referring to particular cases casting unwarranted and
defamatory aspersions upon the character or the ability
of the Judges. 'Scandalising the Court' is a convenient
way of describing a publication which, although it does           B
not relate to any specific case either post or pending or
any specific Judge, is a scurrilous attack on the judiciary
as a whole which is calculated to undermine the authority
of the courts and public confidence in the administration
of justice. (Para 8) (896-0-F]                                    c
    Bramhaprakash Sharma vs. State of UP AIR 1954 SC
10, relied on.

     5. The article which appeared in the Times of India
was torn out of text. If the full text of the message sent        D
by respondent No. 1 had been published in the
newspaper, in all probabilities the petitioners were not
likely to initiate proceedings for criminal contempt of the
court against the respondents. However, in view of the
unconditional apology tendered by the newspaper, it is            E
not necessary for this Court to delve into details about
the conduct of respondent No.3 any further. There is
nothing on the record to show that the Souvenir of the
Mehfil (Literary Association) in which the message was
printed was sold to the public. This was a kind of internal       F
pamphlet/brochure which was distributed to its
members. Therefore, no case is made out against
respondent Nos. 4 and 5 who were subsequently
impleaded in the petition. (Para 12) (898-E-H]
                    Case Law Reference:                           G

    (1988) 3 sec 167           Relied on.         Para 7
    1936 AC 322                Referred to.       Para 7
    (1970) 2 sec 325           Referred to.       Para 7          H
    884      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A         AIR 1978 SC 489              Relied on.           Para 9
          1990 Cri.L.J. 2179 (Born) Approved.               Para 9

          AIR 1954 SC 10               Relied on.            Para 10

B       CRIMINAL ORIGINAL JURISDICTION : T.C. (Crl.) No. 2 of
    1997.

        Harish N. Salve, Ranjit Kumar, Shambhu Prasad Singh,
    Ankur Saigal, Bina Gupta, Binu Tamta, Sunil Kumar Jain, K.V.
    Mohan for the Respondents.
c
          The Judgment of the Court was delivered by

        J.M. PANCHAL, J. 1. The relevant facts. from which the
    present contempt petition arises, are as under :

D       2. Mehfil-e-Wukala ('Mehfil' for short) is a cultural and
  literally group I association of lawyers practicing in the Supreme
  Court. The main object as claimed by the said organization has
  been to promote art, culture and literature amongst the
  members of the Bar. The said group of lawyers also claims that
E Mehfil provides the members of legal fraternity a chance to
  break away from the busy schedule to pursue their talents in
  the fields of art, culture and literature. The Mehfil was started
  in the year 1986 as a small group of poets-advocates who used
  to sit periodically at each other's place and recite poems etc.
F In the year 1992-93, the members of the Mehfil decided to hold
  an annual function and to invite more members of the Bar and
  also the Hon'ble Judges of the Supreme Court and the High
  Court of Delhi to participate in the activities of the Mehfil. It was
  also decided to release a souvenir on the said occasion, which
G was to contain brief account of the activities of the Mehfil,
  messages, articles etc. to be contributed by the Hon'ble Judges
  and senior members of the Bar. Accordingly, Annual Function
  was held on February 6, 1993 at India International Centre, New
  Delhi and a souvenir was published. Again on February 5,
H
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 885
              [J.M. PANCHAL, J.]

1994, Annual Function was held which was attended by the           A
members of the Bar and the Hon'ble Judges. On this occasion
also a souvenir was published which contained various
messages, articles, poems etc. contributed by the members of
the Bar and the Hon'ble Judges. For the year 1994-95, it was
decided to hold the Annual Function on March 25, 1995. As          B
was done in the previous years, it was decided to release a
souvenir on the said occasion. The function was held on the
scheduled date and the souvenir was published. It is claimed
by Mr. Suresh C. Gupta, learned counsel practicing in this Court
in his affidavit in reply that articles and messages were sent     c
by the then Hon'ble Chief Justice of India, Hon'ble Mr. Justice
K. Jayachandra Reddy, hon'ble Justice Dr. A.S. Anand, Hon'ble
M,r. Justice S.P. Bharucha, Mr. K.K. Venugopal, Senior
Advocate and the then President of Supreme Court Bar
Association, Hon'ble Mr. Justice M.M. Punchhi, Hon'ble Mr.         D
Justice B.L. Hansaria etc. Mr. Kapil Sibal who is Senior
Advocate also sent a message to be published in the souvenir.
In his message Mr. Sibal expressed concern about the plight
of junior members of the Bar and also about falling standards
of the legal fraternity. The message was not released to the
                                                                   E
press nor the souvenir was made available for sale but was
circulated to its members and other members of the Bar.
Initially, the message sent by Mr. Sibal did not invite any
controversy whatsoever for about a month. However, Mr. Sibal,
the learned Senior Advocate, decided to contest for the post
of President of Supreme Court Bar Association and filed his        F
nomination. Thereafter, a news item was published in the
Sunday Times of India daily dated April 16, 1995 wherein
certain excerpts from the message which was published in the
souvenir of the Mehfil, were reported which suggested that Mr.
Sibal had made a frontal attack on the judiciary.                  G

     3. The petitioner Nos.1 to 5 are practicing advocates at
the Punjab and Haryana High Court, Chandigarh. Their claim
was that Mr. Sibal who is a Senior Advocate of the Supreme
Court and was contender for the Presidentship of Supreme           H
    886     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   Court Bar Association, had by sending a message which was
    published in the souvenir of the Mehfil committed a criminal
    contempt of the court. The petitioner Nos.1 to 5 were of the view
    that a real prejudice, which can be regarded as substantial
    interference in the administration of justice was caused
B   because of the calculated and keenly studied attempt by Mr.
    Sibal to denigrate the institution of judiciary. The petitioner
    Nos.1 to 5 claimed that the remarks made by Mr. Sibal against
    Hon'ble Judges amounted to an unignorable and unpardonable
    mischief which had tendency to shake the faith of the people
c   of the country in the judiciary. What was claimed by the
    petitioners was that Mr. Sibal had entered into a conspiracy
    with the respondent Nos.2 and 3 to bring the administration of
    justice into disrespect which amounted to deliberate
    interference in the administration of justice and as he had
D   imputed unsubstantiated charges of corruption against the
    Judges, he was liable to be hauled up for contempt of Court.
    Therefore, the petitioners instituted Criminal Contempt Petition
    No.12 of 1995 in the High Court of Punjab and Haryana at
    Chandigarh. The said petition was filed under Article 215 of the
E   Constitution and prayer made was to punish the respondents
    for committing contempt of the High Court of Punjab and
    Haryana at Chandigarh. Initially, the said petition was placed
    for preliminary hearing before a learned Single Judge of the
    High Court. The learned Single Judge was of the view that what
    was alleged by the petitioners against the three respondents
F   impleaded therein was criminal contempt and, therefore, in view
    of the mandatory provisions contained in Section 15 of the
    Contempt of Courts Act, 1971 the petition should be heard and
    decided by a Bench of not less than two Judges. Therefore,
    the learned Single Judge, by an order dated May 16, 1991
G   directed the Registry to place the papers before Hon'ble the
    Chief Justice for listing the matter before a Bench consisting
    of not less than two judges. Accordingly, the matter was placed
    for preliminary hearing before a Division Bench and the Bench
    issued show cause notice to the original respondent Nos.1 to
H   3 stating that they were directed by the Division Bench to
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 887
             [J.M. PANCHAL, J.)

implead the Editors, Printers and Publishers of 'Mehfil-e-           A
Wukala'. The petitioners filed an application to· implead the
respondent Nos.4 and 5 as respondents in the contempt
petition as they were editors of the Mehfil. The said application
was granted and the respondent Nos.4 and 5 were impleaded
in the Contempt Petition. The respondent Nos.5 and 6                 B
Secretaries of Mehfil-e-Wukala filed Transfer Petition No.251
of 1996 in this Court and prayed to transfer the Contempt
Petition pending before the Punjab and Haryana High Court at
Chandigarh to this Court. After hearing the learned counsel for
the parties the said petition was allowed and that is why the        c
Registry has registered the case as Transfer Case (Criminal)
No.2 of 1997. On notice being served, Mr. Sibal and other
respondents have filed affidavit in reply controverting the claims
advanced by the petitioners.

      4. The question posed for consideration of the Court is        D
whether sufficient case is made out by the petitioners to initiate
contempt proceedings against the respondents. It may be
mentioned that after transfer of the case from Punjab and
Haryana High Court at Chandigarh to this Court, several
notices have been issued to the petitioners who are practicing       E
lawyers at the High Court of Punjab and Haryana, Chandigarh.
However, they have not responded to the notices nor entered
appearance through their learned advocate nor thought it fit to
assist the Court in the proceedings initiated by them. However,
it is well settled that contempt of Court is a matter between the    F
Court and the alleged contemnor. The matter is pending in this
Court since the year 1997. Therefore, this Court has decided
to proceed with the hearing of the matter, notwithstanding, the
absence of the petitioners. This Court has heard Mr. Harish
Salve, learned senior counsel for the respondent No.1 and            G
learned senior counsel Mr. Ranjit Kumar appearing for the
learned advocates at whose instance, the contempt petition
was transferred to this Court.

     5. In order to decide the question posed for consideration      H
    888       SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A   of this Court, it would be relevant to set out the Message/Article
    contributed by the respondent No.1 in the souvenir of the Mehfil:

          "The public image of the legal community is at its nadir.
          Influx of large numbers into the profession, deterioration of
B         moral standards of the legal community questionable
          integrity of some of those who are in judiciary and the
          sheer economic cost of starting as a professional and
          sustaining one self have contributed to these falling
          standards.

c                The judiciary, despite the above, provides a glimmer
          of hope for the common man. Those who adorn this
          institution, though tainted, have not yet lost all credibility.
          We have to all unite together to refurbish the image of the
          legal fraternity. Before we point fingers at others, let us do
D         some soul-searching.

                 For a start, let us concentrate on the junior members
          of the Bar. Our senior colleagues owe it to the profession
          to bring up the Junior Bar. This can never be done until
          junior members of the Bar have access to the chambers
E
          of senior lawyers. We must devise what I may call Voluntary
          Access Scheme : in terms of which the Supreme Court Bar
          Association should rotate junior members of the bar
          amongst the chambers of Senior Lawyers who voluntarily
          want to participate in this scheme. Access should be
F
          provided to at least one, if not two, junior members of the
          bar to each senior on the basis of rotation for 6 months at
          a time. This will give to the junior members the advantage
          of having worked with a variety of seniors. Of course, a
          minimum payment schedule must be part of this scheme.
G
                 We must draw up a Code of Conduct applicable to
          the members of the Bar which will lay down norms not only
          in relation to their conduct with each other but also with
          reference to their conduct qua the Bench. Lawyers must
H         refrain from shouting at each other, speaking in anger,
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 889
             [J.M. PANCHAL, J.]

   threatening judges, threatening colleagues and the like. It       A
   is also necessary that procedures must be devised to
   ensure adherence to these norms.

          Entry into the profession should be limited to only •
   those who pass an examination which may be conducted , B
   by the Bar Council of India. This, of course, requires
   legislation. Lawyers must get together, apply their mind to
   this issue and ensure the passing of this legislation.

         It seems that judges have started disciplining
   lawyers. Judges themselves need disciplining. The                 C
   judiciary has failed in its efforts to eradicate the
   phenomenon of corruption. This phenomenon includes
   receiving monetary benefits for judicial pronouncements
   rendering blatantly dishonest judgments, kow-towing with
   political personalities and obviously favouring the               D
   Government and thereby losing all sense of objectivity. The
   legal community instead of publically denigrading judicial
   system should come forward with proposed legislation to
   deal with this issue. A committee must be set up by the
   Supreme Court Bar Association to look into the modalities         E
   of bringing about such legislation in the context of the
   present constitutional frame-work which provides complete
   protection to the judiciary.

         The issue of legal education must be addressed by
   the legal fraternity in cooperation with institutions providing   F
   legal education in India. Funding should be provided for
   studies to be conducted in such aspects of the law as
   required urgent attention.

          There must be greater interaction between the              G
   various Bar Associations in the country. Constant
   interaction will lead to exchange of information which, in
   turn, will enable all of us to attend urgently to the needs of
   the members of the legal profession.
                                                                     H
    890      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A               These are thoughts which require both immediate
          attention and a well thought of strategy. If we pause for a
          moment and think about what I have said, at least we will
          have made a start."

B        6. It may be stated that the Times of India, Delhi dated April
    16, 1995 in the issue of Sunday Times published excerpts from
    the above quoted message sent by Mr. Sibal and title it as
    Sibal's Remark Stir Row in Legal Circles.

        7. A fair analysis of the message sent by Mr. Sibal makes
C it clear that he was concerned with the public image of the legal
  community which according to him was at its nadir. He was of
  the view that influx of large numbers into the profession,
  deterioration of moral standards of the legal community,
  questionable integrity of some of those who were in judiciary
D and the sheer economic cost of starting as a professional and
  sustaining one self had contributed to these falling standards.
  He expressed his firm opinion that judiciary despite the above,
  provided a glimmer of hope for the common man and though
  there were tainted Judges, the institution had not yet lost all
E credibility. He called upon all concerned to unite together to
  refurbish the image of the legal fraternity. In order to make out
  his point Mr. Sibal first of all concentrated on the plight of junior
  members of the Bar. After emphasizing that senior colleagues
  owe it to the profession to bring up the Junior Bar and that the
F junior members of the bar must have access to the chambers
  of the Senior Lawyers, he appealed to the members of the Bar
  to devise a Voluntary Access Scheme in terms of which the
  Supreme Court Bar Association would rotate junior members
  of the Bar amongst the chambers of Senior Lawyers who
G voluntarily want to participate in the Scheme. Mr. Sibal was of
  the view that access should be provided to at least one if not
  two junior members of the bar to each senior on the basis of
  rotation for at least six months which according to him was likely
  to give the junior members the advantage of having worked with
  a variety of seniors. He also emphasized that a minimum
H
 HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 891
              [J.M. PANCHAL, J.)

  payment schedule to the junior members of the Bar must be A
· part of this Scheme. He tailed upon those concerned to draw
  up a Code of Conduct applicable to the members of the bar
  which would lay down norms not only in relation to their conduct
  with each other but also with reference to their conduct qua the
  Bench. He wa$ -of the opinion that lawyars must refrain from B
  shouting at each other, speaking in anger, threatening Judges,
  threatening colleagues and the like and expressed his strong
  feeling by stating that procedures must be devised to ensure
  adherence to these norms. He was of the further opinion that
  entry into the profession should be limited to those who passed   c
  an examination which should be conducted by the Bar Council
  of India. Having addressed to the drawbacks then prevailing in
  the legal profession, he proceeded to discuss the malaise
  affecting the judiciary. Having practiced in the Supreme Court
  for a pretty long time, he perceived that Judges had started
                                                                      0
  disciplining lawyers. He, therefore, mentioned that Judges
  themselves needed to be disciplined. In his Message, he noted
  with pain that judiciary had failed in its efforts to eradicate the
  phenomenon of corruption which included receiving monetary
  benefits for judicial pronouncements, rendering blantantly
  dishonest, judgments, kow-towing with political personalities E
  and favouring the Government and thereby losing sense of
  objectivity. Mr. Sibal had noticed that legal community was
  assailing and belittling the judicial system publically, which was
  harmful. He, therefore, urged the legal community to desist from
  criticizing the judicial system publically and asked them to come F
  forward with proposed legislation to deal with this issue and
  advised a Committee to be set up by the Supreme Court Bar
  Association to look into the modalitie$ of bringing about such
  legislation in the context of then prevalent constitutional
  framework which according to him provided complete G
  protection to the judiciary. He also emphasized in his message
  the necessity of legal education by the legal fraternity in
  coopfiration with institutions providing legal education in India
  and expressed a point of view that funding shoul_d be provided
  for studies to be conducted in such aspects of the law as H
    892     SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A   required urgent attention. Mr. Sibal further stressed necessity
    of having greater interaction between the various Bar
    Associations in the country to exchange information which in
    turn would enable all concerned to attend urgently to the needs
    of the members of the legal profession.
B
         As mentioned earlier, only a part of message was
    published in the newspaper wherein sentences were torn out
    of context and an impression was given that Mr. Sibal had
    made a frontal attack on the judiciary. A fair reading of the
C   message quoted above makes it explicit that the sending and/
    or publication of the message in the Mehfil did not scandalize
    or tend to scandalize, or lower or tend to lower the authority of
    any court nor prejudiced, or interfered or tended to interfere with
    the due course of any judicial proceedings; or interfered or
    tended to interfere with or obstructed or tended to obstruct, the
D   administration of justice in any other manner, within the meaning
    of 'criminal contempt' as defined in Section 2(c) of the
    Contempt of Courts Act, 1971. Having regard to the contours
    of the issue involved, this Court feels that it would be essential
    to recall to the memory the weighty observations made by His
E   Lordship Sabyasachi Mukherji in P.N. Duda vs. P. Shiv
    Shanker & Ors. (1988) 3 SCC 167. Therein, Mr. P. Shiv
    Shankar who at the relevant time was the Hon'ble Minister for
    Law, Justice and Company Affairs had delivered a speech
    before a meeting of the Bar Council of Hyderabad. Mr. P.N.
F   Duda, an advocate practicing in Supreme Court had drawn
    attention of the Court to that speech. According to Mr. Duda,
    the speech of Mr. P. Shiv Shankar contained statements which
    were derogatory to the dignity of this Court as it attributed
    partiality towards economically affluent sections of the people,
G   by this Court. Mr. Duda was of the view that language used in
    the statements was extremely intemperate, undignified and
    unbecoming of a person of Mr. Shiv Shankar's stature and
    position. Mr. Duda, therefore, urged the Court to initiate
    contempt proceedings against Mr. P. Shiv Shankar. The Court
H   went through the entire speech and also noticed the newspaper
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 893
             [J.M. PANCHAL, J.]

version of the said speech. This Court took into consideration   A
the suggestion made by Lord Atkin in Ambard vs. Attorney
Genera/ for Trinidad and Tobago 1936 AC 322, E. M.
Shankaran Namboodiripad vs. T. Narayanan Nambiar (1970)
2 sec 325 and made following apt observations in paragraphs
12 and 13 of the reported decision :                             B

    "12. The question of contempt of court by newspaper
    article criticising the Judges of the Court came up for
    consideration in the case of Re: Shri S. Mulgaokar. In order
    to appreciate the controversy in this case it has to be C
    stated that the issue dated 13th December, 1977, of the
    Indian Express published a news item that the High Courts
    had reacted very strongly to the suggestion of introducing
    a code of judicial ethics and propriety and that "an adverse
    has been the criticism that the Supreme Court Judges, D
    some of whom had prepared the draft code, have
    disowned it". In its issue dated December 21, 1977 an
    article entitled "behaving like a Judge" was published
    which inter alia stated that the Supreme Court of India was
    "packed" by Mrs. Indira Gandhi "with pliant and submissive
    judges except for a few". It was further stated that the E
    suggestion that a code of ethics should be formulated by
    Judges themselves was "so utterly inimical to the
    independence of the judiciary, violative of the
    Constitutional safeguards in that respect and offensive to
    th!;) self-respect of the Judges as to make one wonder how F
    it was conceived in the first place". A notice had been
    issued to the Editor-in-Chief of the Newspaper to show-
    cause why proceedings for contempt under Article 129 of
    the Constitution should not be initiated against him in
    respect of the above two news items.                         G

    13. It was observed by Chief Justice Beg in that decision
    that national interest required that all criticisms of the
    judiciary must be strictly rational and sober and proceed
    from the highest motives without being coloured by any       H
    894       SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A         partisan spirit or tactics. This should be a part of national
          ethics. The comments about Judges of the Supreme Court
          suggesting that they lack moral courage to the extent of
          having "disowned" what they had done or in other words,
          to the extent of uttering what was untrue, at least verge on
B         contempt. None could say that such suggestions would not
          make Judges of this Court look ridiculous or even
          unworthy, in the estimation of the public, of the very high
          office they hold if they could so easily "disown" what they
          had done after having really done it. It was reiterated that
c         the judiciary can not be immune from criticism. But, when
          that criticism was based on obvious distortion or gross
          misstatement and made in a manner which seems
          designed to lower respect fqr the judiciary and destroy
          public confidence in it, it could not be ignored. A decision
          on the question whether the discretion to take action for
D
          Contempt of Court should be exercised must depend on
          the totality of facts and circumstances of the case. The
          Chief Justice agreed with the other two learned Judges in
          that decision that in those facts the proceedings should be
          dropped. Krishna Iyer, J. in his judgment obs.e.rved that the
E         Court should act with seriousness and severity where
          justice is jeopardised by a gross and/or unfounded attack
          on the Judges, where the attack was calculated to obstruct
          or destroy the judicial process. The Court must harmonise
          the constitutional values of free criticism, and the need for
F         a fearless curial process and its presiding functionary, the
          judge. To criticise a judge fairly albeit fiercely, is no crime
          but a necessary right. Where freedom of expression
          subserves public interest in reasonable measure, public
          justice cannot gag it or manacle it. The Court must avoid
G         confusion between personal protection of a libelled judge
          and prevention of obstruction of public justice and the
          community's confidence in that great process. The former
           is not contempt but latter is, although overlapping spaces
          abound. The fourth functional canon is that the Fourth
H          Estate should be given free play within responsible limits
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 895
             [J.M. PANCHAL, J.]

    even when-ttfe focus of its critical attention is the court, A
    iricludirigthe highest court. The fifth normative guideline for
    the Judges to observe is not to be hypersensitive even
    where distortions and criticisms overstep the limits, but to
    deflate vulgar denunciation by dignified bearing, and the
    sixth consideration is that if the Court considers the attack B
    on the judge or judges scurrilous, offensive, intimidatory or
    malicious beyond condonable limits, the strong arm of the
    law must strike a blow on him who challenges the
    supremacy of the rule of law by fouling its sources and
    stream."                                                     c
      8. There is no manner of doubt that Judges are
accountable to the society and their accountability must be
judged by their conscience and oath of their office. Any criticism
about the judicial system or the judges which hampers the
administration of justice or brings administration of justice into D
ridicule must be prevented. The contempt of court proceedings
arise out of that attempt. National interest requires that all
criticisms of the judiciary must be strictly rational and sober and
proceed from the highest motives without being coloured by
 any partisan spirit or tactics. There is no manner of doubt that E
freedom of expression as contemplated by Article 19(1 )(a) of
the Constitution is available to the Press and to criticize a
judgment fairly albeit fiercely is no crime but a necessary right.
A fair and reasonable criticism of a judgment which is a public
document or which is a public act of a Judge concerned with F
administration of justice would not constitute contempt. In fact,
such fair and reasonable criticism must be encouraged
because after all no one, much less Judges, can claim
infallibility. The Message examined the evils prevailing in the
judicial system and was written with an object to achieve G
maintenance of purity in the administration of justice. The
message was exposition of Mr. Sibal's ideology and he had
shown the corrective measures to be adopted to get the
institution rid of the shortcomings mentioned by him. On the
facts of the case, the message sent by Mr. Sibal to be published H
    896      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   in the souvenir of the Mehfil will have to be regarded as fair
    criticism of his senior colleagues for their failure to bring up the
    Junior Bar and of those members of the Bar who were shouting
    at each other and threatening the Judges. The message is
    nothing but concerns of a senior advocate who has practiced
B   long in this Court who noticed that the public image of the legal
    community was its nadir. The article nowhere targets a
    particular judge. This is not a case of an attack on a Judge
    which is scurrilous, offensive, intimidatory or malicious beyond
    condonable limits, in respect of a judgment or his conduct. The
c   article is an expression of opinion about an institutional pattern.
    The article by itself does not affect the administration of justice.
    Here, it would not be out of place to refer to certain reported
    decisions dealing with the question as to when a publication
    can be regarded as scandalizing the Court or tending to
0   interfere with the administration of justice or lowering the
    authority of Court. Scandalising in substance is an attack on
    individual Judges or the Court as a whole with or without
    referring to particular cases casting unwarranted and
    defamatory aspersions upon the character or the ability of the
    Judges. 'Scandalising the Court' is a convenient way of
E   describing a publication which, although it does not relate to
    any specific case either post or pending or any specific Judge,
    is a scurrilous attack on the judiciary as a whole which is
    calculated to unqermine the authority of the Courts and public
    confidence in the administration of justice.
F
        9. In re: Sham Lal AIR 1978 SC 489, a news item referring
  to a signed document describing one of the views expressed
  in the Habeas Corpus case, i.e., ADM Jabalpur vs. Shivkant
  Shukla (1976) 2 SCC 521 as 'misdeed' and Judges who gave
G such decision would be 'ostracized' in other countries appeared
  in newspaper Times of India. This Court was called upon to
  initiate contempt proceedings. The Court took the view that this
  was not a fit case for drawing up formal contempt proceedings
  and dropped the proceedings. In Vishwanath vs. E.S.
H Venkataramaih 1990 Cri.L.J. 2179 (Born), Mr. E.s.
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 897
              [J.M. PANCHAL, J.]

Venkataramaiah, former Chief Justice of India, gave an               A
interview to a noted journalist Kuldeep Nair at the eve of his
retirement on 17.12.1989 which was published in several
newspapers. In course of interview, the former Chief Justice is
stated to have made the following statements : "The judiciary
in India has deteriorated in its standards because such judges       B
are appointed as are willing to be influenced by lavish parties
& Whisky Bottles." In every High Court, Justice Venkataramaiha
said, there are at least 4 to 5 judges who are practically out
every evening, wining and dining either at a lawyer's house or
foreign embassy. He estimates the number of such judges              c
around 90 and favours transferring them to other High Courts.

      Chief Justice Venkataramaiha reiterated that close
relations of Judges be debarred from practicing in the s~me
High Courts. He expressed himself strongly against sons-in-law
and brothers of Judges appearing in the Courts where the latter      D
are on the Bench. Most relations of Judges are practicing in
High Courts of Allahabad, Chandigarh, Delhi and Patna.

      According to C.J. Venkataramaiha practically in all the 22
High Courts in the country close relations of Judges are thriving.   E
There are allegations that certain judgments have been
influenced through them even though they have not been directly
engaged as lawyers in such case. It is hard to believe the
reports that every brother, son or son-in-law of a judge whatever
his merit or lack of it as lawyer can be sure of earning an          F
income of more than Rs.10,000/- a month.

     The Division Bench of Bombay High Court held that the
words complained of did not amount to Contempt of Court on
the grounds that (1) the entire interview appears to have been
given with the idea to improve the judiciary; (2) the Supreme        G
Court had dismissed the Writ Petition (C) No.126 of 1990 filed
on behalf of State Legal Aid Committee,'-j & K for an
appropriate writ commanding the Union of India or any other
appropriate authority to disclose the names of 90 judges as
mentioned by the former Chief Justice of India.                      H
    898      SUPREME COURT REPORTS                  (2010] 8 S.C.R.


A        10. In Bramhaprakash Sharma vs. State of UP AIR 1954
    SC 10, Resolution of the Executive Committee of the District
    Bar Association of the Muzzafarnagar to the effect that two
    judicial officers were thoroughly incompetent and to not inspire
    confidence and are given to stating wrong facts, was
B   considered overbearing and discourteous but no action was
    taken against the members of the Bar.

         11. Bearing in mind the trends in the law of contempt as
    noticed by this Court in N. Duda vs. P. Shiv Shankar (supra),
    the message contributed by Mr. Sibal, read in its proper
C   prospective, did not bring the administration of justice into
    disrepute or impair. Therefore, it must be held that no criminal
    contempt was committed or attempted to be committed by the
    respondent No.1.

D         12. On behalf of the Times of India, written statement has
    been filed by Mr. Rakesh Bhatnagar. In the reply, the contempt
    petition is sought to be defended on merits but it is mentioned
    that there was no deliberate or intentional attempt on the part
    of the answering respondent to lower the prestige of the
E   Hon'ble Court. By filing the reply the newspaper has tendered
    unconditional and unqualified apology, if the Court comes to the
    conclusion that contempt of court was committed by the
    respondent No.3. However, it will not be out of place to mention
    that the article which appeared in the Times of India was torn
F   out of text. If the full text of the message sent by Mr. Sibal had
    been published in the newspaper, in all probabilities the
    petitioners were not likely to initiate proceedings for criminal
    contempt of the Court against the respondents. However, in view
    of the unconditional apology tendered, it is not necessary for
G   this Court to delve into details about the conduct of the
    respondent No.3 any further. There is nothing on the record to
    show that the souvenir of the Mehfil in which the message was
    printed was sold to the public. This was a kind of internal
    pamphlet/brochure which was distributed to its members.

H
HARi SINGH NAGRA & ORS. v. KAPIL SIBAL & ORS. 899
             [J.M. PANCHAL, J.]

Therefore, no case is made out against respondent Nos.4 and          A
5 who were subsequently impleaded in the petition.

      13. On the facts and in the circumstances of the case, this
Court is of the opinion that this is not a fit case where a formal
proceedings for contempt should be drawn. up and, therefore,
                                                                     8
notices issued to them will have to be discharged and the
petition will have to be dismissed.

    For the foregoing reasons, the contem~t proceedings are
dropped. The notices issued to the responderits are discharged
and the petition is dismissed.                                       C

K.K.T.                                     Matters disposed of.