P.K. Balasubramanyan, J. 1. This proceeding is initiated by the petitioner under Ss.12 and 15(1)(b) of the Contempt of Courts Act. The petitioner has obtained the consent of the Advocate General for moving this Court by order dated 24.3.1999 in sanction Petition No. 7 of 1998.
2. The proceeding is initiated against the correspondent. Editor-in-Chief and the Printer and Publisher of the Malayalam daily Kerala Kaumudi. The gravamen of the charge is that by publishing the article marked as Ext. P1 in the daily dt. 7.11.1999 the respondents had tried to interfere with the due course of a judicial proceeding pending in the High Court. According to the petitioner the article published in the daily also lends to interfere with the due course of that proceeding. It is also stated that the article prejudices the course of the pending judicial proceeding. The proceeding referred to is the proceedings under the Contempt of Courts Act initiated by this Court against the Chief Secretary to the State and others for not carrying out the directions earlier issued by this Court regarding the conduct of the meeting of the Payyavoor Panchayat which had been convened to consider a no-confidence motion. The particular no-confidence motion and the incidents surrounding the moving of that motion had evoked public interest and newspapers including the newspaper published by respondent No. 2, were commenting on the same regularly. The proceedings under the Contempt of Courts Act was initiated on the plea that a direction to respondents in that proceeding for providing adequate police protection to the movers of the resolution for enabling them to attend the meeting of the Panchayat so as to move the resolution, was wilfully and deliberately flouted by the respondents to that proceeding and consequently, they were guilty of 'civil contempt' within the meaning of S. 2(b) of the Contempt of Courts Act. The first respondent to that proceeding was the Chief Secretary to the State. The proceedings had started on 10.9.1998 as C.C.C. No.413 of 1998. The Division Bench dealing with that proceeding, had framed the charges in that case on 4.11.1998. There was a request on behalf of the Chief Secretary to the State that the Chief Secretary may be permitted to file a fresh affidavit tendering his unconditional apology for the failure to ensure that the direction of this Court was complied with and time was granted for the filing of such an affidavit. At that stage the Chief Secretary took the stand that he had not instructed his counsel to make such a request and he was not filing an affidavit tendering his unconditional apology. There was considerable controversy about the conduct of the Chief Secretary and whether the manner in which the case was being conducted on his behalf was befitting the status of a Chief Secretary to the State. It is at that stage that the newspaper printed and published by respondent No. 2 published the article in question penned by respondent No. 3. The essential suggestion in that article was that the Chief Secretary was being put on a spot by the inefficient manner in which the office of the Advocate General had handled the case and the failure of the office of the Advocate General to give the necessary and proper advice to the Chief Secretary to the State. In short the suggestion in the article was that the Chief Secretary against whom charges had been framed by this Court for contempt of court was more sinned against than sinning.
3. According to the petitioner, after the framing of the charge, when the question of proceeding further against the Chief Secretary was pending consideration of the Court, an article like the one in question will have a tendency to interfere with the course of the proceeding pending before the Court and it would tend to interfere with the administration of justice. It is pointed out that the article was more or less an apologia for the conduct of the Chief Secretary and the newspaper was thereby suggesting that the Chief Secretary was not really guilty of the charge of contempt framed against him. It is submitted that the publication of the article was deliberate and with the intention to influence the course of the proceeding in the court and hence action was warranted under the Contempt of Courts Act. It is also pointed out that the Advocate General had accorded sanction to the petitioner for initiating this proceeding under the Act.
4. Respondent No.3, the author of the article published in the newspaper, has filed a reply submitting that he had only performed his duty as a newspaper reporter, that the report in question was not made with any malicious motive. Nor was it intended to prejudice the trial of the contempt of court case against the Chief Secretary, or to interfere with its trial. The article related to a matter which was of public interest and which was already the subject matter of a public debate and on which all the newspapers in the State were regularly commenting. The repeated changing of counsel by the Chief Secretary to the Government and the filing of affidavits without due care and caution had been the subject matter of public criticism and it was only from that angle that the article was written suggesting that it would be appropriate for the Chief Secretary to apologise to the court and not to proceed further with his defence. It is submitted that in writing the article, there was no intention to scandalise or bring disrepute to the Court. Respondent No. 3 was not guilty of criminal contempt of court as alleged.
5. Respondent No. 1, the Chief Editor filed a separate reply Respondent No. 2, the Printer and Publisher, adopted that reply. The contention in that reply is that the newspaper, as a responsible newspaper, was only commenting on a matter of public interest and the article was not published with any malicious or ill motive as suggested by the petitioner. The article was only a continuation of the various articles that had appeared regarding the Payyavur incident and the newspaper, of which respondent No. 1 is the Editor, was only commenting on matters of public interest in relation to that incident. It was true that this Court had framed charges against the Chief Secretary to the Government. What the article in question suggested was only that the Chief Secretary should not further precipitate matters and it would be more appropriate if he tenders an apology with the further comment that the Chief Secretary had been put in the position in which he found himself, only by the improper handling of the matter by the office of the Advocate General. It is submitted that a responsible newspaper has not only the duty but the right, to comment upon matters of current interest and matters of public interest and as far as the Payyavur incident was concerned, newspapers had already started commenting on it when this Court initiated proceedings under the Contempt of Courts Act and it could not be said that the newspapers should stop commenting on the incidents altogether, merely on the ground that a proceeding had been initiated by this Court regarding that incident. It is further submitted that there was no intention to interfere with the proceedings in the High Court and it was not felt that the article would in any manner influence or prejudice the Judges in the matter of dealing with the proceedings under the Contempt of Courts Act initiated against the Chief Secretary to the Government. The bonafides of the petitioner in moving the proceeding under the Contempt of Courts Act is also questioned.
6. The respondents having thus denied the charge, in terms of R.14 of the Contempt of Courts (High Court of Kerala) Rules, the Court has to frame a charge if it is satisfied that there is a prima facie case or drop the proceedings and discharge the respondents if it is satisfied that there is no prima facie case or that it is not expedient to proceed. The parties were heard with a view to take a decision on this aspect.
7. What is alleged in this case is that the respondents are guilty of 'criminal contempt' as defined in S. 2(c) of the Contempt of Courts Act, 1971. The definition of 'criminal contempt' reads thus:-
"'Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any mailer or the doing of any other act whatsoever which-
What is argued on behalf of the petitioner is that the publication in question tends to scandalise the court and certainly prejudices or interferes with the due course of a judicial proceeding pending in this court. It is also submitted that the publication interferes with the administration of justice since it seeks to influence the approach of the Judges to the proceeding pending in the court. These submissions are refuted on behalf of the respondents. It is contended that there was no attempt to scandalise the court or to prejudice or interfere with the trial of the proceeding pending in this Court. The newspaper was commenting only on a matter that involved public interest and the publication was clearly within the rights of the newspaper and could not be treated as contempt. It is also submitted by the respondents that the publication in no way substantially interferes or tends substantially to interfere with the due course of justice and this is not a case where any further action is warranted against the respondents.
8. A brief reference to the nature of the proceeding pending in this Court is warranted at this stage. Certain members of the Payyavoor Panchayat had sought for and obtained a direction directing the State represented by the Chief Secretary and the police officers arrayed as respondents therein to give them the necessary protection to attend a meeting of the Panchayat so as to enable them to move a resolution that they had given notice of. Their case was that they were being prevented illegally from attending the meeting and there was an attempt to throttle democracy by misuse of political power. Inspite of the grant of the direction as sought for by them, they could not participate in the meeting or to move the resolution they had given notice of This led to their approaching this Court with the proceeding under the Contempt of Courts Act, 1971 complaining that the direction of this Court dt.27.8.1998 in C.M.P. 29661 of 1998 in O.P. 16716 of 1998 was wilfully disobeyed by the respondents therein. The Chief Secretary to the State was respondent No. 1 in that proceeding. Respondents 2 and 3 were the concerned police officers and respondent No. 4 was the Deputy Director of Panchayats. Proceeding against respondent No. 5 though initiated was dropped by order dated 26.10.1998. It was this proceeding initiated under the Contempt of Courts Act that was pending. On 4.11.1998 the Court had framed charges against respondents 1 to 4. We are only concerned with the charges against respondent No. 1 therein, Chief Secretary to the Government which were as follows:-
"That you, M. Mohan Kumar, S/o. Gopala Menon, aged 57 years, Chief Secretary to Government of Kerala after having had knowledge about the order dt. 27.8.1998 in C.M.P. No. 29661 of 1998 in O.P. 16716 of 1998 passed by this Court directing the State of Kerala to afford necessary and adequate police protection to the petitioners in the Original Petition for attending the panchayat meeting convened as per Ext.P1 in the Original Petition on 1.9.1998, have wilfully disobeyed the order by not taking any effective steps to implement the order and thereby committed gross civil contempt under S. 2(b) of the Contempt of Courts Act, 1971.
(2) That the contempt thus committed by you is of such a nature that it undermined the prestige of the court and substantially interfered with the due course of justice by wilfully defeating the relief obtained by the petitioners under the above mentioned order dated 27.8.1998, thereby rendering yourself punishable under S. 12 of the Contempt of Courts Act, 1971."
During the course of the trial of the said contempt of court case, it is alleged that the Chief Secretary to the Government took inconsistent stands at different times. Chief Secretary to the Government allegedly changed his legal advisers a number of times. It is regarding these matters that respondent No. 3, a correspondent of the Malayalam daily 'Kerala Kaumudi' wrote the article which was published by the daily in its issue dated 7.11.1998. There cannot be any doubt that on 7.11.1998 the contempt of court proceedings CCC 413 of 1998, were pending against the Chief Secretary and others. The article was hence published knowingly that a judicial proceeding was pending in the form of a contempt of court case. In fact the article related to the matter pending in the court and that fact is clear from the article itself. The question is whether the article is only the performance of 'pathra dharma' or it is something which exceeds that 'dharma' and tends to lower the prestige of the authority of this Court or to interfere with or obstruct the due course of a judicial proceeding or the administration of justice.
9. Before proceeding further it may be better to refer to what exactly has been stated in the article. We have already noticed that the matter was pending in court at the relevant time on a complaint that a direction issued by this Court had been wilfully disobeyed by the respondents who were parties to that direction. The incident relating to the moving of a resolution of no-confidence in the Payyavoor Panchayat had already become the subject matter of discussion in newspapers including the newspaper Kerala Kaumudi, at a time when the contempt of court proceedings were initiated. Depending on one's point of view, newspapers were commenting on the incidents relating to the moving of the resolution and the alleged attempt to prevent the movers of the resolution from being present at the meeting at which the resolution was to be taken up for consideration. A section of the press alleged that what was sought to be done by preventing the movers of the resolution from attending the meeting of the Panchayat was the throttling of democracy. The newspaper in question, 'Kerala Kaumudi' appears to have adopted that line in its writings on the incident. In the article in question what was suggested was that the disobedience of the direction of this court was really not due to any wilful omission or commission on the part of the Chief Secretary, but inspite of it, the Chief Secretary was finding himself in an untenable position because of the negligence, ignorance or inefficiency of his advisers. The blame in that regard was put by the newspaper on the office of the Advocate General and the Government Pleaders who were involved with the conduct of the case on behalf of the Chief Secretary. The article suggested that the Secretary was put in the spot because of the light hearted manner of handling this case in court and the absence of sense of responsibility on the part of some persons and this view was gaining currency among the Secretaries to the Government who were in sympathy with the Chief Secretary. It was suggested that there was default in the office of the Chief Minister and also default on the part of the office of the Advocate General in the matter of bringing to the notice of the Chief Secretary the factum of the issuance of the direction by this Court. The article went on to suggest that the Chief Secretary was not given information in time regarding the direction of this Court and there was default on the part of the Advocate General not only in not informing the Secretary about the direction issued by this Court but also in the matter of filing replies on behalf of the Chief Secretary in the contempt of court case initiated against him. It was suggested that two contradictory affidavits were filed one after another and no attempt was made to explain the circumstances under which such a thing had to be done. Nor was any apology tendered to the court for adopting such totally inconsistent stands. There was also a charge that the Advocate General had not argued the case on behalf of the Chief Secretary though this was a matter of considerable importance. Of course, it is a different question whether the Advocate General could have defended an alleged contemner in a proceeding under the Contempt of Courts Act. In a sense the article sought to project the Chief Secretary as a victim of circumstances and had suggested that if his defence had been handled more carefully he would not have found himself in the spot in which he was placed as on the date of the article.
10. As we read this article, it is more in the nature of a criticism of the efficiency and conduct of the advisers of the Chief Secretary including the office of the Advocate General rather than a criticism of the Court or the actions or orders of the Court.
What is argued on behalf of the petitioner is that the article tends to scandalise or lower the authority of the court in public mind and also seeks to interfere with the course of the judicial proceeding pending before the court by suggesting that the Secretary was really a victim of circumstances rather than a person who had violated the order of the court deliberately or wilfully. It is contended that by making such a stand the newspaper was trying to influence the decision that had to be reached by the court in the light of all the relevant circumstances obtaining in C.C.C. 413 of 1998.
11. On behalf of the respondents it is contended that the incidents that are the subject-matter of C.C.C. 413 of 1998 were already the subject-matter of writings in newspapers including Kerala Kaumudi and it was a matter of public debate in the State of Kerala and as a responsible newspaper the daily was entitled to comment on the proceedings in the Court. It was also submitted that the article could in no sense be considered to scandalise the Court or tower the authority of the court in any manner. It is also submitted that the article in no way prejudices the trial of the proceeding or interferes with the administration of justice. It was at best a comment on the woeful performance of the office of the Advocate General and the criticism of the manner in which the defence of the Chief Secretary was being conducted and it cannot be said to be an interference with the proceeding pending in the Court itself. What had been stated in the article were facts that led to the untenable situation in which the Chief Secretary found himself and it was nothing but a record of what had actually happened before the Court during the course of that proceeding with a suggestion regarding those who were responsible for the situation being what it was as on the date of that article. The definition of criminal contempt in the Act was not attracted to the case and in any event this was a case to which S. 13 of the Act applied and the conduct is not punishable since it is not of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice.
12. The charge that is sought to be fiamed in this case against the respondents is that the respondents on 7.11.1998 published the concerned news item in Kerala Kaumudi with the full knowledge and awareness that the Payyavoor contempt case was pending before the High Court and that the publication was intended or reasonably calculated to prejudice a fair trial of the case and influence the decision and thereby the respondents have committed the offence of criminal contempt coming within the purview of S. 12 of the Contempt of Courts Act. 1971.
13. In Raju Bose v. Pritish Nandy (1986 KLT 303) the Division Bench summed up the relevant position thus:-
"Any publication on a pending judicial proceeding with the likely effect of interfering or lending to interfere with the administration of justice would be contempt, notwithstanding the fact that it was made as a continuation of a public debate on a matter of general importance. The statutory provisions in the Act are clearly indicative that comments or statements in relation to pending judicial proceedings, with objectionable tendencies as envisaged under the Act, would be outside the pale of contempt only subject to the satisfaction of the requirements of the exceptional provisions such as Ss. 4 and 5".
(Headnotes) In Lakhan Singh v. Balbir Singh (1953 Cri.L.J. 733) the Division Bench of the Allahabad High Conn held:-
"An assertion that a fact exists and has been established as correct when the existence of that fact is in dispute in a pending case and its existence is yet to be determined, is likely to prejudice a fair trial of the case when the assertion assumes the shape of the opinion of persons unconnected with the case like the editor of a newspaper".
(Headnotes)
14. In Attorney General v. Times Newspapers Ltd. ((1974) AC 273) the House of Lords held that it was contempt of court to publish material which prejudge the issue of pending litigation or was likely to cause public prejudgment of that issue, and accordingly the publication of the article in question which in fact charged the company with negligence would constitute a contempt since negligence was one of the issues in the litigation. Lord Reid stated that 'as a general rule it may be permissible by fair and temperate comment and without any oblique motive to urge a party to litigation to forgo his legal rights. Lord Morris of Borth-y-Gest stated that:
"Full, free, yet temperate comment would have been permissible on the questions whether the legal principles touching the assessment of damages were not inadequate or unfair, whether it was the fault of the legal system if too much time elapsed before agreements or adjudications and whether the company, regardless of their legal liability, should make generous payments on the basis that what they had sold had produced unfortunate consequences".
15. In Re Lonrho Plc & Ors. ((1989) 2 All ER 1100) the House of Lords took the view that:
"Publication relating to a particular legal proceedings was less likely to be held to create a substantial risk that the course of justice in those proceedings would be seriously impeded or prejudiced and therefore a contempt of court under Contempt of Courts Act if the proceedings were to be heard by a Judge rather than tried by a jury and since the possibility that an appellate court would be influenced was even more remote and it was unlikely that the Secretary of State would be deterred from contesting the appeal, it could not be said that the respondent was guilty of contempt by causing to be published material which prejudged the issue in the appeal proceedings pending before the House of Lords".
16. The basis on which the court acts when exercise of jurisdiction under the Contempt of Courts Act called for was summarised by Lord Morris in Attorney General v. Times Newspapers Ltd. ((1974) AC 273) in the following words:-
"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should be imperilled and that recourse to them should not he subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged by the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court."
17. What is to be tested is whether the suggestion in the article that the Chief Secretary was a victim of circumstances would in any manner tend to prejudice a fair trial of the issue regarding the conduct of the Chief Secretary which was pending adjudication by the Court. We do not see anything in the article which can be said to scandalise the Court or the Judges who were dealing with the contempt of Court case. According to counsel for the respondents it at best tends to comment on the conduct of the case by the office of the Advocate General and that cannot be considered to be a criticism of the Court as such. We are inclined to agree with that part of the submission. But at the same time strictly speaking it is to be noted that the article purports to be a defence of the failure of the Chief Secretary to implement the direction of this Court issued in the Original Petition. To that limited extent it does tends to affect the adjudication of one of the issues involved in the case as to whether there was 'wilful disobedience' of the direction issued by this Court. Certainly a newspaper like the one edited and published by respondents 1 and 2 should have adopted a more cautious attitude in commenting on the proceedings that are taking place in the court.
18. At the same time, it is too much to believe that two learned Judges of this Court exercising jurisdiction under the Contempt of Courts Act would in any manner be influenced by the publication of the article like the one in question suggesting that the Chief Secretary was more sinned against than sinning. This Court had necessarily to try that issue and the trial of that issue would necessarily depend upon the evidence that was forthcoming unless of course the Chief Secretary had admitted the charge and tendered an unconditional apology. We are not satisfied that the publication of the article in question would have had any impact on the decision to be rendered by the learned Judges. The learned Judges obviously had before them the position as described in the article in the newspaper and the attempted adoption of various stands on behalf of the Chief Secretary. The Court was therefore in a position to draw its own inference from those circumstances. To believe that the Court would have been influenced by the article in question would not be justified in the circumstances. We do not therefore feel that this is a fit case where we should frame a charge against the respondents though we feel that the respondents should be cautioned against making comments on proceedings pending in the court which may tend to influence the conclusion that may be arrived at by the Court. After all responsible journalism means adherence to the ethics of journalism and that would certainly include the taking of necessary precautions to ensure that nothing is said in the publication which would tend to prejudice the trial of an issue or tend to prejudge an issue that is being tried by the Court.
19. We are also of the view that in the case on hand it is inexpedient to take any action under the Contempt of Courts Act. We may also notice that subsequently pursuant to the directions of the Supreme Court affidavits were filed before this Court by the respondents to the proceeding C.C.C. 413 of 1998 and the Chief Secretary had also filed an affidavit in that regard and this Court on accepting the affidavit and the apology contained therein had dropped the proceedings. In such circumstances we are of the view that it is also inexpedient to initiate any action under the Contempt of Courts Act against the respondents on the facts and in the circumstances of the case.
We therefore drop this proceeding.