SADHU SINGH RODA S/O BUTA SINGH ETC.

STATE OF PUNJAB

. January 25, 1984

[V.D. TULZAPURKAR, R.S. PATHAK AND SABYASACHI

MUKHARJI JJ.]

Code of Criminal Procedure 1973-Secs. 433 and 433A.

Punjab Jail Manual-Para 516-B-Interpretatlon of-Para 516-B Is nat a statutory rule but contains executive instructions which can be amended by subsequent executive instructions issued by State Gcwernment.

Paragraph S 16-B of the Punjab Jail Manual provided Inter alla that after a person sentenced to 1:re imprisonment had undergone detention for the period specified in that paragraph together with remission earned, his case sbuld be submitted to the State Government for consideration of his pre-mature release. In 1971 the State Government issued instructions laying down certain minimum period of actual detention to be undergone by a person sentenced tO life imprisonment before his case for pre.mature release could be considered by the State Government.

In 1976 the State Government. issued further inHructions that cases of life convicts whose death sentence had heed commuted to life imprisonment should be considered' for premature release only after completion of 14 years of actual imprisonment.

The petitioners, who claimed to have satisfied t le requirements of para 516-B and thus become entitled to be cansidered for pre-mature release under that paragraph, alleged that following the 1971 and 1976 instructions the jail authorities were not submitting their cases to the State Government for consideration of their pre-mature release.

The petitioners contended that para 516-B was a statutory rule and the subsCquent executive instructions issued in 1971 and 1976 could not amend or alter the statutory rule thereby adversely affecting their rights under Para 516-B.

Dismissing the five petitions and a l1owing two petitions,

HELD : A sentence of imprisonment for life is a sentence for the n maioder of the natural life of the convict and there is no question releasing such a convict earlier ill the absence of a formal order of commutation passed by the State Gove1nment either under sec. 55, IPC. or sec. 433 (b) . of Cr. P.C. 1973 and that even the Remission Rules, though statutory, cannot over-ride the statutory prOvisions contained in the Penal Code.

Admittedly, in the case of none of the petitioners before the Court bas any order of commutation been passed b:Y the State Government und;;:r either of tbe said provisioQs. [74, E-F]

~UPREMB COURT REPORTS

(1984) 2 s.c.&.

Pandit Klshori Lal, AIR 1945 PC. 64; Gopal Godse [1961] 3 SC.R. 440; Mam Ram, (1981] I S.C.R .. 1196 and Kartar Singh (1982] 3 S.C.R. l; referred to.

Para 516-B of the manual itself contained executive instructions and had no force of a statutory rule.

If that be so it would always be open to the State Government from time to time to alter or amend or even withdraw such executiVe instructions by issuing fresh instructions.

But once fresh instructions for processing the cases for lifers for pre-mature release are issued these must be uniformly and invariably applied to all cases of lifers so as to avoid the Charge of discrimia:Hion under Art. 14 of the Constitution. [748E-F]

In Naranjan Singh's case (Which decision is subject matter of challenge in criminal appeal arising from leave being granted in SLP (Crl.) No. 499 of 1983) the fact that the State Government had issued the 1971 instruction which substituted Para 516-B of the manual was not properly placed before the High Court and in the absence of such proper material the High Court took the view that the convict's ca!>e for pre-mature release was required to be considered in the light of the provisions of Para 516-B.

The view of the High Court cannot obviously 1'o accepted. [7480-H]

The contention of tbe petitioners that the State had been erroneously making a distinction between cases of prisoners who had been sentenced to death but whose sentences, oo mercy petitions, had been commuted to Jife imprisonment and prisoners who had been straigbtawiiy sentenced to Jife imprisonment in the matter of consideration of their cases for pre-mature reiease, must fail in view of the admitted position that cases of prisoriers who have been sentenced to death but whose sentence en mercy petitions has been commuted to life-imprisonment {who constitute a distiOct class) will now be governed by the 197.6 Instructions.

The view of the High Court in the case of Mehar Singh v. State of P.unjab __ (not reported} that the.1976 instructions Wiil not be applicable to cases of prisoners convicted earlier to that date is not tenable.

Clearly existing cases of life 'convict's falling within that category .will be governed by those instructions. [749A-CJ

ORIGINAL JURISDiCTION: Writ Petition (Criminal) Nos. 64 to 70 of 1983.

Under article 32 of the Constitution of fndia

Mrs. Urmila Sirur, Sanjeev Puri and Amerdeep Jaiswal for the Petitioners.

Harbai1s Singh and S.K. Bagga for the Respondent.

The Judgment of the Court was delivered by

TULZAPURKAR, J. In the context of the right of the 'lifers' H (prisoners sentenced to life imprisonment prior to 18th December,

SADHU SINGH v. PUNJAB (Tu/zapurkar, J.) 743

1978 being the date of coming into force of sec. 433A, Cr.P.C.) to have their cases considered for pre-mature release ander the Punjab Jail Manual two contentions were urged by counsel appearing for the lifers before us in the above matters.

First, it was contended that such lifers were entitled to have their cases for pre-mature release considered by the concerned authorities on completion of ten years of sentence inclusive of remissions in the case of a female prisoner or a male prisoner of under 20 years of age at the date of the commission o'f the offence or completion of 14 years of sentence inclusive of .remissions in the case of adult prisoners under Para 516-B of the .Punjab Jail Manual but since November, 1971 the authorities concerned are not submitting their cases for such consideration until actual substantive imprisonment has been undergone for 6 years in case of female prisoners and prisoners below 20 years at the date of the commission of the 'Offence and 8! years in case Qf adult prisoners and in that behalf certain executive instructions issued by the Punjab Government on 6th August, 197 i are being relied upon but according to the counsel for the lifers such executive instructions issued in 1971 cannot affect the right conferred upon the lifers under Para 516-B which has the force ofa statutory rule and Statutory Rules canpoi be amended or altered by any executive instructions; hence the lifers concerned in these matters are entitled to have their cases considered for pre.mature release since they satisfy the requirements of Para 516-B of the Punjab Jail Manual.

In this behalf counsel relied upon the Punjab High Court's decision dated 9.l!.1982 in- Naranjan Singh's case (which decision is subject- ·. matter of challenge in Criminal Appeal arising from leave being granted in SLP (Cr!. No. 499/1983).

In othet words, cqunsel . canvassed for acceptance of the Punjab High Court's view in the aforesaid case by this Court.

Secondly, counsel for the lifers urged that the Sta.le of Punjab has been erroneously making a distinction between cases of Prisoners who have bee~ sentenced to death but whose sentences, on mercy petitions, have been commuted to life imprisonment and prisoners who have been straightaway sentenced to life imprisonment in the matter of consideration of their cases for pre-mature release in that in the case of the former completion of 14 years of actual sentence is insisted upon while in the case of the latter only 8§: years of actual sentence is regarded as sufficient for such consideration, the case of Tapinder Singh s/o Manjit Singh, the petitioner in Writ Petition (Cr!.) No. 68 of 1983 being in point. According to counsel the State Government in this behalf has been relying upon certain

SUPREME COURT REPORTS

(I 9 84) 2 S.C.11.

executive instructions issued on 30th of January, 1976 but counsel pointed out that in the case of Mehar Singlz v. State~( Punjab(l) a Single Judge of the Punjab High Court held that those instructions will not be applicable to cases of prisoners convicted earlier to that date and Special Leave Petition (Cr!.) No. 2142 of 1982 preferred by the State of Punjab against that decision was dismissed by this Court on 18th of February, 1983 and, therefore, it is not open to the State Government to rely upon those executive instructions issued on 30th January, 1976 for making the distinction and postponing the consi- deration of the cases of prisoners falling within the former category until 14 years of actual imprisonment has been suffered by them.

paragraph 516-B of the Punjab Jail Manual runs thus:

516-B. (a) With tho exception of females and of males who were under 20 years of age at the time of commission of offence, the cases of ePery convicted prisoner sentenced to:-

(i) Imprisonment for life.

(ii) fo1prisonment/s for life and term/s of imprisonment.

(iii) Cumulative Periods of Rigorous imprisonment aggregating of more than 14 years.

(iv) a single sentence of more than 20 years. :-

(a) who has undergone a period of detention in jail amounting together with remission earned to 14 years, shall be submitted through the Inspectors General of Prisons, Punjab for the orders of the State Government.

(b) the case of a female prisoner and of a male prisoner under 20 years of age at the time of commission of offence, who is undergoing-

(i) Imprisonment/s for life.

(ii) Imprisonment/s for life and a term/s of im.prisonment.

(1) Unreportod

.,.

-~ -

SADHU SINGH v. PUNJAB {Tulzapurkar, J.)

(iii) Cumulative periods of Rigorous imprisonment aggregating to more than 10 years. or;

(iv) A single sentence .of more than 20 years shall be submitted through the Inspector General of Prisons, Punjab, for the orders of the Staie Government when the prisoner has undergone a period of detentiPn in jail amounting togetAer with remission earned to 10 years.

14~

(v) Notwithstanding anything contained above, a ·

Superintendent, Jail may, in his discretion, refer at any time, for the orders of the State Government through the Inspector-General of Prisoners, Punjab, the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent's opinion be suitably commuted into a term of imprisonment."

It appears that from -time to time the State Government had been examining the question of, and the procedure for, submission of Roles for pre-mature release of prisoners as contained in the aforesaid Para 516-B of the Manual and after considerable deliberation the State Government took a policy decision in 1971 and issued instructions (hereinafter called 'the 1971 Instructions') providing that a period of actual sentence of St years in the case of adult lifers and 6 years in the case of female prisoners and those below 20 years of age at thr time of the commission of the offence should be regarded as the qualifying period for consideration of their cases for pre-mature release and in .this behalf a Memorandum No. J3311- 6JJ-7 l/39656 dated 10th of November, 1971 containing the aforesaid instructions was issued by ihe State Government to the Inspector- General of Prisons, Punjab and it was clarified that all cases of prisoners should be sent for consideration of their pre-mature release in the light of said policy decision with effect from 2nd of November,

1971. It further appears that the question of releasing pre-maturely life convicts whose death sentence has been commuted was again considered by the State Government and it took a policy decision in January, 1976 that cases of such life convicts should be considered for pre-mature release only after completion 14 years of actual imprisonment and in that behalf a Memorandum No. 403-611-76/ 3456 dated 30th January, 1976 containing the necessary instructions (hereinafter called 'the 1976 Instructions') was issued by the State Government to the Inspector-General of Prisons, Punjab with a

746 StlPRBMB COURT REORTS

(1984) 2 S.C.R.

request to diiect the Superintendents of Jails to submit cases of such life convicts for pre-mature release accordingly. (Copies of the Memoranda dated 10th of November, 1971 and 30th January, 1976 have been annexed as Annexures B and C to the Affidavit of Shri C.L. Goel in support of the SLP No. 499/19.83. filed by the State of Punjab in Naranjan Singh's case. (Proceedings of SLP No. 499/83 were made available to us at the bearing.) It may be stated that ·. these 1971 Instructions and 1976 Instructions though not incorporated in the Punjab Jail Maunal as yet, are being followed and implemented and it appears that relying on these Instructions the Jail Authorities are not submitting cases of the concerned lifers to the State Government for pre-maturo release though they may have sufferred the qualifying punishment under para 516-B of the Manual.

Hence Counsel for the petitioners herein bas raised the two contentions mentioned above. In our view, for the reasons which we are indicating presently, there is no substance in either of these contentions.

It is well settled as result of the Privy Conncil decision in Pandit Kishorl Lat's (I) case and this Court's decisions in Gopal Godse's (2) case, Maru Ram's (3) case and Kartar Singh's (4) case that a sentence of imprisonment for life is a sentence for the remainder of the natural life of the convict and there is no question releasing such a convict earlier in the absence of a formal order of commuta- . tion passed_ by the State Government either under sec. 55, IPC. 'or sec. 433 (b) of Cr. P.C. 1973 and that even the Remission Rules, though statutory, cannot over-ride the statutory provisions contained in the Penal Code. In other words, unlik0 the cases of prisoners sentenced to terms of imprisonment, m the case of!ifers even the Remission Rules though statutory are of no avail in the absence of a formal order of commutation either under sec. 55, !PC. or sec. 433

(h) of Cr. P.C. 1973.

Admittedly, in the case of none Of the petitioners before us has any order of commutation been passed by the State Government under either of the said provisions and the petitioners are merely relying upon para. 516-B of the Punjab Jail Manual for contending that they am entitled to have their case.s considered for pre-mature release since they have undergone the requisite period of punishment-I 4 years/ 10 years inclusive of remissions as per the provisions of the said para and the contention is

(1) A.I.R. 1945 P.C. 64. (2)

[1961) 3 S.C.R. 440.

(3) [19s1J 1 s.c.R. 1196.

H (4) [1982) 3 s.c.c. 1.

,.\,-.

~·-

' ... ,.._ -

• >

that since Para 516-B has the force of statutory rule the subsequent executive instructions (the 1971 Instructions or the 1976 Instructions) issued by the State Government cannot adversely affect their said right in as much as the effect of a statutory rule cannot be whittled down by executive instructions. On the other hand counsel for the State contended that the provisions contained in Para 516-B were themselves executive instructions and not a statutory rule and as such these could - be amended or altered from time to time by fresh executive instructions issued. by the State Government and therefore the petitioners' cases were not submitted to the concerned authorities for consideration of their' pre-mature release because of the subsequent executive instructions issued. in 1971 and 1976. We find ample material on record which supports the contention of counsel for the State.

Jn the first place, it may be stated that the marginal note against Para 516-B of the Punjab Jail Manual (1975 edition) clearly shows that the provisions thereof are based on a Government of India Resolution No. 159-167 dated 6th September, 1905, copy whereof was produced before us and the contents of the Resolution clearly show that various questions such as the places where transported prisoners should be kept, the nature of their punfahmnt, remission of sentences, pre-mature releases, etc. had engaged the attention of Government of India and decisions were taken on those questions. In particulr the Resolution records that the majority of the authorities consulted were in favour of the proposal of the U.P. Government that when the te1m of imprisonment undergone together with any remission earned under the rules amounted to 14 years the question of remitting the remainder of the imprisonment should be raised and the Governor-General in Council was accordingly pleas((d to direct that such a rule "shall be ordinarily adopted in. future, though he would not, however, lay down that such prisoners must always be released at the end of the 14 years and it would still be open to, and indeed encumbent on, the Local Government to take into consideration, when deciding on the remission to be granted, circumstances of each, case, the character of the convict, his conduct in prison and the probability of his reverting to criminal habits or instigating others to commit crimes". What is more copies of the Resolution were forwarded to various State Government "for information and guidance." Thi; clearly shows that . the contents of Goyernment's Resolution dat.ed 6th September, 1905, on which para 516-B of the Punjab Jail Manual is based, were in the nature of executive instructions by way of guidance and not any hard and fast rule,

-~'

748 SUPRl!Mll COURT REPORTS (1984] 2 s.c.R.

much less a statutory rule. Secondly, this position has been sufficiently clarified at . two places in the Punjab Jail Manual (1975 edition) itself. In the preface to that edition it has been clearly stated that the Paragraphs of the Manual against which a black line (side-line) appears arc in substance, either quotations from the Law or from the Rules having the force of the law while the portions of the Manual without a black line (side-line) are executive instruction which have from time to time been issued by the Government of India, Local Government or the In.spector General with the sanction and approval from the Local Government. and para 516-B is not side-lined by any black line.

Again, Chapter XX which deals with remission system contains Para 631 to 650 which comprise what in terms are called 'remission rules' presumably having statutory force since these paras are all side-lined, but what is of importance is that at the foot of para 63 i there is a Note which is nothing but a reproduction of para 516-B and at the end of Remission Rules (foot of para 650) there is a Nota bene which says that the Note to para 631 should not be regarded as part of the Statutory Rules but the same has been inserted for convenience of reference and with the object of assisting officers to. interpret the rulei. It is thus clear that para 516-B of the Manual iteslf contained executive instructions and had no force of a statutory rule. If that be so it would always be open to tho State Government from time to time to alter or amend or even whithdraw such executive instructions by issuing fresh instruction. In other words any existing execntive instructions co .Id be substituted by issuing fresh executive intructions for proce"ing the cases of lifers for prematnre release but once issued these must be uniformly and invariably applied to all cases of lifers so as to avoid the charge of discrimination under Art. 14.

Reliance by Counsel for the petitioners on the Punjab High Court's decision in Naran}an Singh's case would be of no avail, However, we would like to observe that in that case the fact that the State Government had issued the 1971 Instructions which substituted para 516-B of the Manual was not properly placed before it and in the absence of such proper material the High Court took the view that the convict's case for per-mature release was required to be considered in the light of the provisions of para 516-B. The view of the Punjab High Court cannot obviously be accepted. The first contention urged by counsel therefore has to be rejected.

),,_

The second. conicntion also must fail in view of the admitted position that cases of prisoners who have been sentenced to death but whose sentence on mercy petitions has. been commuted to lifeimprisonment (who constitute a distinct class) will now be governed by the 1976 lnstructioris.·. Here also the view of the Punjab High Court in the case of Melw Singh (supra) that the 1976 Instructions issued on 30th of January, 1976 will not be applicable to cases of prisoners convicted earlier to that . date is not tenable. Clearly existing cases or life convicts falling within that category will be governed by those instructions. It is true that SLP (Crl) No .• 2142/1982 preferred by State of Punjrb against that decision was dismissed by this Court on 18th February,· 1983 but the dismissal order passed by this Court itself indicates that this Court did so not because it approved the view of the Punjab High Court but that it "did not consider this to be a prop'r cases for mterference in view of the peculiar facts of this case". This Court did not deme on the facts of that case to interfere with the direction. given that the case of the convict should be submitted for consideration or his premature release.

Having regard to the above discussion it is clear there 1s no .., entitlement on the part of the petitioners other than Jang Smgh and Mukhtiar Singh to have their cases considered for pre-mature release immediately in view of 1971/ 1976 Instruction. Theil Writ Petitions are therefore dismissed.

So far as Jang Sing, h s/ o Bagga Singh and Mukhtiar Singh s/ o Harnam Singh are concerned even the Counter Affidavit of Shri K.C. Mahajan shows that in accordance with the 1971 Instruction they have undergone more than Xt years of actual imprisonment and as such they have the entitlement.

We therefore iosue a writ of Mandamus thet their cases be submitted for consideration of pre- ! . mature release for(h with without any delay.

H.S.K.

Two p_titions allowed and five

petitions tt/.1missed

SADHU SINGH RODA S/O BUTA SINGH ETC

STATE OF PUNJAB

January 25, 1984

V.D. TULZAPURKAR

R.S. PATHAK

Code of Criminal Procedure 1973

S 16

sec. 55

IPC

sec. 433

Ovisions contained in the Penal Code

Pandit Klshori Lal

[1961] 3 SC.R. 440

Art. 14

Naranjan Singh

article 32

Urmila Sirur

Sanjeev Puri

Amerdeep Jaiswal

Harbai1s Singh

S.K. Bagga

TULZAPURKAR

sec. 433A

Cr.P.C

Punjab Government

6th August, 197

Punjab High Court

Tapinder Singh

Manjit Singh

State of Punjab

18th of February, 1983

30th January, 1976

Unreportod

10th of November, 1971

Punjab

2nd of November,

1971

C.L. Goel

Pandit Kishorl Lat

Gopal Godse

Maru Ram

Kartar Singh's

sec. 55

IPC

sec. 433

Penal Code

sec. 55

sec. 433

[1961) 3 S.C.R. 440

Government of India

6th September, 1905

U.P. Government

Goyernment

the contents of Goyernment's Resolution dat.ed 6th September, 1905, on which para 516-B of the Punjab Jail Manual is based, were in the nature of executive instructions by way of guidance and not any hard and fast rule,
~'

748 SUPRl!Mll COURT REPORTS (1984] 2 s.c.

Art. 14

Naran}an Singh

Melw Singh

30th of January, 1976

State of Punjrb

18th February,· 1983

Jang Smgh

Mukhtiar Singh

Jang Sing

Bagga Singh

Harnam Singh

K.C. Mahajan


7SO

A-1

SHIVRAM ANAND SHIROOR

RADHABAI SHANTRAM KOWSHIK AND

ANOTHER

January 31, 1984

(0. CHINNAPPA REDDY, E.S. VENKATARAMIAH AND

R. B. MISRA, JJ.]

Bon1bay Rents llotel and Lodging House Rates Acts 1947.

Seel/on 13

Member of Armed Forces-Flat i11herited while in service-On retirement fro1n service-Whether could eject tenant frorn flat on ground of bona fide require1nent.

Interpretation of Statutes :

fVords o.t statute-clear and unambiguous-No question of construction ar/Ses-Court to giPe effect to plain woids.

Words and Phrases :

'regain possession'-Afeaning of.

The appellant '?'as a member of the armed forces of the Union from August, 19.42 .until August 17, 1970 when he retired from the Anny. 1'1 1964, bu inherited a flat fron1 his brother.

The respondent wa~ already the tenant bf the flat.

Soon after retirement, he filed a suit against the respondent for ejectn1ent oa the grounds of default, sub letting and bOna fide personal requirement.

While the suit was pending, the Bombay Rents, HOtcl and Lodging House Retes Control Act, }94 7 was amended in 197 5 by the introductiori of section I 3 A-1.

The appellant, therefore filed a fresh suit for eviction under ection 13 A-1, and produced therequired certificate.

The Rent Controller a1:d the Appellate Authority concurrently found that the appellant bona fide required. the flat for his own occupation and decreed the suit.

The respondent-tenant moved the High Court under Article 227, and the High Court while not interfering with the concurrent finding of the subordinate tribunals that the appellant bona fide required the premises for

.;,

SHIVRAM V, R.S. X:OWSHiK 751

his own occupation, Set aside the decree for eviction on the ground that section 13 Al did not enable a men1ber or a retired member of the armed forces to seek the remedy provided by section 13 Al. _if the premises were already in the occupation of lhe tenant when be became the landlord while being a member of the arined forces.

Allowing 'the appeal to this Court,

HELD : J. (i) The Bombay Rent Hotel and Lodging House. Rates Control Act, 1947 is a welfare legislation designed to protect tenants from harassment and unreasonable eviction by Lai1dlords.

It should, therefore be interpreted in a broad and liberal spirit so as to further and not to constrain the object of the Act.

The exclusionary provisions in the Act should be construed strictly so as to give a wide amplitude to the principal object of the legislation and to prevent its evasiOn on deceptive grouads.

But this does not mean 'that the intention of the legis!ature, expressed with sufficient vocabular cfa.rity or gathered by reference to permissible sources, may be by-passed. to. accommodate individual verions of what may appear reasonable. ['T55B-D]

(ii) Wher.e the words of a statute can arise no question .of construction. themselves. [755D]

are clear and unambiguous, there Such words ordinarily speak fOr

(iii) A court should give effect to plain words. not because .there is . any charm or magic iO the plainness of such words 'but because plain Words

may be expected to convey plainly the intention of the Legislature. [755E]

Section 13 A-1 of the Act was introduced in 1915, relaxing the rigour of section 13 in favour of a landlord who is or w<iS a member of the arn1ed forces.

The provision provides that if the landlord produces a certificate in the manner prescribed it shall be taken as established, without further proof that he was then a member of ihc armed forces of the Union

or that he was such member and now a.retired ex-serviceman and that he did not possess any other suitable resider:ce -in the local area where he or any member of his family can reside.

All that he had to fllfther prove was that he bOna fide required the premises for occupation by himsclf_or any mrnber of his family.

The certificate is conclusive proof that.he did not possess any s_uilable residence in thC local area, and not that be bo11a fide required the premises for occupation by himself or any member 'of his_ family.

As soon as be established that he bona fide required the premises foi occupation he was entitled to recover possession, aod did not have to further prove that greater hardship could be caused to him than to the tenant if a decree for possession is not granted._[7560-G]

3 .. It is impossible on the plain language of section 13 A"'l of the Act to read down the provision as enabling a member or aretired member of the armed forces to recover possession of tile premises only if he bad himself originally let out the premises when he was the member. of the armed forces and not if tho tenancy had commenced before he became the

landlord of the premises either by inheritence, partition, or any. other H

752 SUPREMB COURT RllPORTS (1984] 2 s.c.R.

mode of transfer of property.

To place such an interpretation would be to virtually rewrite the prOvision. [757E-F]

The words 'regain possession' in the Statement of Object's and Reasons, merely mean 'obtain possession', and do not indicate that the member of the Armed Forces must have let the tenant into possession.

(758G] Mrs. Winifred Ro<s and Anr. v. Mrs. Ivy Fonseca and Ors., [1983] (2) S.C. SCALE 900 referred to,

CIVIL APPELLATE JURISDICTION : Civil Appeal No .. 2906 of 1981.

C Appeal hy Special leave from Judgment and Order dated the

6th July, 1981 of the Bamby High Court m Writ Petition No. 227 of 1981.

Raju Ramachandran and Mrs. Sadhana Ramachandran for the Appellant.

S.B. Bhasme, K.

Rajendra Choudhary and K. Sivraj Choudhary for Respondent.

M N Shroff for Respondent No. 2 (NOT PRESENT)

The Judgment of the Court was delivered by

CHINNAPPA

REDDY, J.

The appellant in this appeal by special leave under Art. 136 of the Constitution was a member of the Armed Forces of the Union from August. 19~2 until August 17, 1970 when he retired from the Army, In 1964, he became the owner of a flat in. a co-operative society in Tardco Bombay having inherited the same from his brother. The respondent was already the tenant of the premises when the appcllent inherited it as the owner. Soon after his retirement, the appellant filed a suit for ejectment against the respondent on the grouuds of default in payment of rent, bona fide personal requirement and unlawful snblctting. This was iu 1971.

While the suit was still pending, the Bombay Rents, Hotel and Lodging House Rates Centro! Act, 1947 was amended in 1975 by the introduction of sec. 13 A-L This was a special provision aimed at enabling a member of the Armed Forces of the Union or a retired members of the said Armed Forces to recover possession of premises hona fide required by him for his occupation or the occupation of members of his family on the production of a certificate from the Head of the Service or the Commanding Officer. The certificate was to specify that the indivi

SBIVRAM v. R.S. KOWSHIK (Chinnappa Reddy, J.) 753

dual concerned was presently a member of the armed forecs of the Union or that he was such a member and was now a retired cx-servicomm and th•t he did not possess any other suitable residence in the local area wherever he or any member of bis family could reside. It was further provided that the certificate was to be conclusive evidence of the facts stated therein An important distinctin between the general provision contained in Section 13 (I) (g) and the special provision Section 13 A-1 is that under the special provision a tenant is disabled from taking advantage of Section 13 (2) which provides that no decree for eviction shall be passed on the ground specified in Sec.ion J 3 (!) fg) if the court is satisfied that having regard to all the circumstances of the case, greater hardship would be caused by passing the decree than by refusing to pass it.

The appellant, therefore, preferred to file a fresh. suit. for eviction of the respondent under Secrion 13 A-: of ihe Bombay Rent Act rather than pursue the suit filed in 1971.

He filed a fresh suit under the new provision. He produced the certificate required to be produced under Section 13 A-1. The Rent Controller and the Appellate Authority concurrently found that the Appellant bona fide required the flat for his own occupation and decreed the suit.

The tenant moved the High Court of Bombay under Art. 227 of the Constitution. A J.earned single Judge of the High Court, while . not interferring with the concurrent finding of the subordinate tribunals that the landlord bona fide require the premises for his own occupation, nevertheless set aside the decree for eviction on the ground that Section 13 A-I did not enable a member or a retired member of the armed forces to seek the remedy provided by Section 13 A-1 of the Bombay Rent Act if the premises were already in the occupation of the tenant when he became the landlord has .appealed under Art. 136 of the Constitution.

Section 13 A-1 of the Bombay Rent Act is as follows:

"13 A-1 Notwithstanding anything contained in this Act (a) a landlord, who is a member of the armed forces of the Union, or who was sueh member and is duly retired (which term shall include premature retirement) shal! be entitled to recover possession. of any premises, on the ground that the premises are bona fide required by him for occupation by himself or any member of his family (which term shall include a parents or other relation ordinarily residing with him and dependent on him); und the Court shall pass a decree for eviction on such ground

if the landlord, at the hearing of the suit, produces a certificate signed by the Head of his Service or his Commanding Officer to the effect that-

(i) he is presently a member of the armed forces of the Union or he was suh member and is now a retired ex-service1nan;

(ii) he does not possess any other suitable re.sidence in the local area where he or the member of his family can reside;

(b) where a member of the armed forces of the Union dies while in service or such member is duly retired as stated above and dies wtihin five years of his retirement, his widow, who is or becomes a landlord of any premi.ses, shall be entitled to recover possession of such premises, on the . ground that the premises are bona fide required by her for occupation by herself of any member of he1• faimily (which term shall include her or her husband's parent or other relation ordinarily residing with her) : and the Court shall pass a decree for eviction on such ground, if such widow, • at the. suit, produces a certificate signed by the Area or Sub-area Commander within whose jurisdiction the premises are situated to the effect that-

(i) she is a widow of a deceased member of the armed forces as aforesaid;

(ii) .she does not possess any other suitable residence in the local area where she or the members of her family can reside.

Eplanation !-For the purpose of clause (al of this section, the expression "the Head of this Service", in the case of officers retired 'from the Indian Army includes the Area Commander, 'in the case of officers retired from the Indian Navy includes the Flag Officer Commanding-ill-Chief, Western Naval Command, and in the case of officers retired from the Indian Air Force includes the Station Commander.

,.._

-.,

SHIVRAM v. R.S. KOWSHIK (Chinnappa Reddy,!.) 755

Explanation 2-For the purposes of this section, any certificate granted thereunder shall be conclusive evidence of the facts stated therein".

It is true, as pointed out by the learned Single Judge, the Bombay Rent Act is a welfare legislation designed among other matters, to protect tenants from harassment and unreasonable eviction by Landlords and it should, therefore he interpreted in a broad and liberal spirit so as to further and not to constrain the object of the Act.

We also agree that the exclusionary provisions in the Act should be construed strictly so as to give a wide amplitude to the principal object of the legislation and to prevent its evasion on deceptive grounds.

But this does nof mean that the intention of. the legislature, expressed with sufficient vocabular clarity or gathered by , reference to permissible sources, may be by-passed to accommodate individual versions of what may appear reasonable. The ta1k of an interpreter is to asce_rtain intention. It is often said, where the words of a statute are clear and unambiguous, there can arise no question of construction. Such words ordinarily speak for themselves.

Since the _words must have._ . spoken as clearly to legislators . as to judges, it may be safely

presumed that the legislature intended what the words plainly say.

This is the true basis of the so called golden rule of Construction that -"Where the language of an Act is clear and explicit, we must give effect to it, -for in that case the words of the Statute speak the intention ofthe legislature". A court should giveeffect to plain words not because there is any charm or magic in the plainness of such, words but because plain words may be expected to convey plainly the intention of the legislature.

Bearing these general principles in mind, if we look at Section !3 A-1 against the background and in the light of the object and the remaining provisions of the Act, what do we find ? As we said earlier one of the principal objects of the Act is to protect the tenant against unreasonable eviction by a landlord. So, the Act stipulates the grounds on which a Landlord may seek eviction of a tenai1t. Section 13' ( 1) (g) in particular enables a . lan.dlord to recover possession of any premises if the Court is satisfied 'that the premises are reasonably and bona-fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held.

So solicitous indeed is the legislature about protecting the tenant that Section 13 (2) contains a further stipulation that : ·

"No decree for eviction shall bo plSscd on the ground specified in clause (g) of subsection (I) if the Court is satis.

fled that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it'', and "Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree fo respect of a part of the premises, the Court shall pass the decree in respect of such part only".

Notwithstanding the expressed legislative bias in favour of the tenant, the legislature itself made a serious departure from the general rule so as to lean in favour of landlords who are or were members of the armed services, and who because of the exigencies of their service were not able to occupy their own premises during the course of their service.

Section 13 A-1 was enacted, relaxing the rigour of Section 13 in favour of a landlord who is or was a member of the armed forces.

It is now provided that if he produces a certificate in the manner preseribed it shall be taken as established, without further proof that he is presently a member of the armed forces of the Union or that he was such member and is now a retired exserviceman and that he does not possess any other suitable residence in the local area where he or any member of his family can reside.

All that he had to further prove is that he bona fide required the premises for occupation by himself or any member of his family.

The cerificate is conclusive proof that he did not possess any suitable residence in the local area, but not that he bona fide requires the same for occupation by himself or any member of his family. 1here may be cases where he does not possess any other suitable residence in the local area and yet he does not bona fide require the premises for occupation by himself or any member of his family, being comfortably settled elsewhere with a no need or pressure to move. But so soon as he establishes that he bona fide requires the premises for occupation for his family, he is, entitled to recover possession and docs not have to further prove that greater hardship would be caused to him than to the tenant if a decree for possesion is not granted.

It is of course, implicit that the person producing the certificate is the landlord. It is further implicit that the person mentioned in the certificate as presently or previously a member of the armed forces was at a simultaneous point of time both landlord and member of the armed forces.

This has been laid down recently by this Court in Mrs.

Winifred Ross .h Anr. v. Mrs. Ivy Fonseca

SHIVRAM v. R.S. KOWSHjK (Chinnappa Reddy, J.) 757

and Others (1) where it was observed :

"Having regard to the object and purposes of the Act and in particular Section 13 A-i it is difficult to hold that Section 13 A-I can be availed of by an ex-member of the armed forces to recover from a tenant possession of a buiiding which he acquires after his retirement.

Since a liberal interpretation -of Section 13 A I of the Act is likely to expose it to a successful challenge on .the basis of Art. 14 of the Constitution, it has to be read down as conferring benefit only on those members of the armed forces who were landlords of the premises in question while they were in service even though they may avail of it after their retirement. Such a construction would save it from the criticism that it is discriminatory and also would advance the object of enacting it, namely, that members of the armed forces should not while they are in service feel worried about the difficulties of a long ifrawn out litigation when they wish to get back the premises which they have leased out during their service". ·

But we find it impossible on the plain language of Section 13 A-1 to further read down the provision as enabling a member or a retired member of the armed forces to recover possession of the premises only if he had himself oiginally let out the premises 'when he was a member of the arined forces and not if the tenancy had commenced before he became the landlord of the premises either by inheritance, partition, or any _oher mode of transfer of property. To place such an interpretation would be to virtually rewrite the provi sion. The language of Section 13 A-I which is sufficiently plain does not warrant or invite such an interpretation. Nor is there anything elsewhere in the Act which compels such a construction The statement of object and reasons was read to us. It says,

"Defence Services Personnel are liable to transfers and

to be stationed in different parts of the country. They are G ofte_n posted at non-family stations. Some of these personel, who possess their own premises either in their homo towns or elsewhere have necessarily to hire them out to other persons temporarily while they are away on duty. It has been represented to the State Government by the military

(I) (1983] 2 S. C. sCALB 900 H

authorities that on their retirement or transfer to nonfamily stations the serving and ex-service personnel find it extremely difficult to regain possession of their premises which they badly require for personal occupation permanently or for housing their families for the duration of their posting at non-family stations. In case of death of a service personnel while in service or death of ex-service personnel shortly after the retirement, the widoll' also finds it extremely difficult to regain pornession of their premises for her personal occupation or occupation of her family.

The case of Defence Services Personnel due to their special obligations and disabilities do need d!fferent treatment from that accorded to other landlords and in fact special provisions have been made for them 'in some of the States, whereby processes for each personnel to regain possession of their premises have been simplified and made more effective ..

It is considered necessary to make a special provision in the Bombay . Rents, Hotel and Lodging House Rates Control Act, 1947 to enable a member or retired member of the armed forces of the Union or a widow of such a member who dies while in service, or who dies within five years of his retirement, to regain possession of their premises, when bona fide reqnired for occupation by them or members of their families and to provide that the Court shall be bound to pass a decrrce for eviction on such ground if such member or widow, as landlord, produces, at the hearing of the suit, the necessary certificate signed by the Head of bis Service or His Commanding Officer or the Area or Sub-Area Commander within whose Jurisdiction the premises aresituated.

The Bill is intended to achieve these objects"

It was said that the use of the words 'regain possession' in the statement of Objects and Reasons indicated that the member of the armed forces must have himself given possession, that is, he must have himself let 'the tenant into possession. We cannot read so much into the Statement of Object and Reasons and into the Statute, via the Statement of Objects and Reasons, 1 he words 'regain possession' in the context, are merely meant to convey 'obtain possession'. To our mind, the intention of the leislature is

"' ..

-.. '

SHIVRAM v. R.s. KOWSH(K (Chinnappa Reddy, J.) 759

expressed with sufficient clarity by the la_nguage of Section 13 A-1 A and there is nothing either in the Statute or in the Statute or in the Statement of Objects and Reasons to suggest that the intention of the legislature was other thanwhat we have said. We therefore,· allow the appeal, set aside the judgment of the High Court and restore those of the Rent Controller and the appellate authority. The parties will bear their respective costs. The respondents are given time till 30th September, 1984 to vacate the premises subject to their B filing within four weeks from today an undertaking which shall be in the form usually adopted in the Court.

N.V.K.

Appeal allowed.

1

SHIVRAM ANAND SHIROOR

RADHABAI SHANTRAM KOWSHIK AND

ANOTHER

0. CHINNAPPA REDDY

E.S. VENKATARAMIAH

R. B. MISRA, JJ.

Article 227

SHIVRAM V

section 13

section 13

Rates Control Act, 1947

Section 13

section 13

section 13

Raju Ramachandran

Sadhana Ramachandran

S.B. Bhasme

K.

Rajendra Choudhary

K. Sivraj Choudhary

M N Shroff

CHINNAPPA

REDDY

Art. 136

Tardco Bombay

sec. 13

Chinnappa Reddy

dual

Section 13

Section 13

Section 13

Bombay Rent Act

Section 13

High Court of Bombay

Art. 227

Section 13

Section 13

Art. 136

Section 13

Section 13

Section 13

Section 13

Section 13

Section 13

Section 13

Section 13

Art. 14

Section 13

Section 13

Bombay

Section 13

30th September, 1984

N.V.K.


M.R. PARASHAR AND ORS.

DR. FAROOQ ABDULLAH AND ORS.

January 31, 1984

(Y.V. CaANDRACHUD, C.J. AND A.P. SEN, J.J

Contempt of Courts Act. 1971-Publicarion in a newspaper of a/leqation of Contempt of Court by Chief Minister-Requisite Proof not furnished-No record of speech produced- Whether could be committed for contempt.

A news item appeared in the newspaper of which respondent No. 2 was its editor, that while addressing a rally of Judicial Employees' Welfare Association, the Chief Minister of Jammu and Kashmir denounced and D ridiculed the judiciary stating that "Justice is being bought in judlci<ll Courts" and that he would never honour the Coures stay arders because justice could be bought with money.

The news item also stated that the Chief Minister expressed bis regret to the Chief Justice and other Judges who were present at the meeting, explaining that the strong words used by him were the voice of his conscience and that he had the greatest regard for

the judiciary.

The petitioner filed the contempt petition against the Chief Minister.

Although a show cause notice was issued under the Contempt of Courts Act 1971 to the Chief Minister (respondent) on March 18, 1983 no counter 0 affl.davit was filed till September 26, 1983.

When the contempt petition was called out on that day his ndvocate accepted the notice on behalf of the respondent.

Eventually on November 21, 1983 the affidavit of the Chief Minister dated November 9, 1983 was taken on record.

While the Chief Minister denied having made the statements attributed to him, the Editor asserted that the version published in the newspaper was true.

G On the question whether the statements published in the newspaper amounted to contempt of court.

Dismissing the petition,

HELD : What is involved in this case is criminal contempt and there~ fore it is necessary to apply the particul:ir standard of proof required to be established in a criminal case. Respondent, No. 1, on the material placed on H record; cannot be held t.o be guilty of the charge. (764F]

( .

.. --..

1 ..

M.R. PARASliAR v. FAROoQ ABDULLAH 761

Jo matters invOlving allegations Of criminal contempt., the Court has to act both as a prosecutor and as a Judge.

It does so to uphold the authority of law and not in defence of a particular Judge.

Secondly, the right _of free speech is an important right of the citizen an~ bona fide criticism of any system or institution is aimed at inducing thC administrators of that system or institution to look inwards and in1prove its public image.

Courts do not like to assume the posture that they are above criticism. At the same time though Jaw does not restrain the expression of disapproba tion against what is done in or by Courts of law, the liberty of free expression is not to be confounded with a licence to make unfounded allegations of corruption against the judiciary.

The abuse of the liberty of free speech and expression carries the case nearer the law of contempt.

Those who criticise the judiciary must remember that they are attacking an institution which is indispensable for the survival Of the rule of law but which bas no means of defending itself.

Therefore, Judges must receive the protection of law from unfounded attacks on their character.

(765H; 766A, B-E; F-G]

If the Chief Minister said what was alleged in the news item he was in contempt; if he had not, the Editor had committed a contempt by publishing a false feport of a scurillous speech that was never made~ In the face of denial by one and an assertion by the other without more, it is difficult to deci<!e who is right.

On the one hand is the tendency to ridicule the system of justice and malign those: who administer it, on the othef is the propensity of the fourth estate fo~ some little sensatioll and its political involvment.

When political considerations pollute the stream of life, sifting truth from falsehood becomes a formidable .and .forbidding task. In thfsc circumstances it is difficult to record a positive finding that the allegatation that the Chief Minister made the particular stat :men{ is proved beyond a reasonable doubt. [764D-F]

Although the petition\!rS had asserted that the Judges of the High Court were present at One of the functions and that they walked out of the meeting on hearing the abusive language used by the Chief Miaister 00 attempt was made to establish the truth of that assertion.

A walkout by Judges of the High Court during the speech of the Chief Minister or soon thereafter would have lent considerable weight to the allegation that the statements made by the Chief Minister were open to grave objection.

[764GH]

When a Chief Minister makes a formal speech an official record of the speech, if it were a prepared. speech, or even if it were an extempore speech, should have been kept.

No one taped or took down the speeches ofa person as important as.the Chief Miaister.

No written record kept contern~

poraneously or prepared soon after is cited to contradict the allegation G that the Chief Minister scandalised the Courts and assailed the character of Judges.

[7658-D]

ORIGINAL JURISDICTION : Contempt Petition No. 8118 of 1983.

Under Art. 129 of the Constitution read with Section 15 of the Contempt of Court's Act, 1971.

SUPREME COURT REPORTS

(1984} 2 S.C.R

A Subhash Sharma, N. M. Popli and K. R. R. Pillai for the petitioner.

S. N. Kacker and Altaf Ahmad for Respondent No. 1.

M. C. Bhandare, E. c. Agarwa/a and Mrs. Indira Saivlmey B for Respondent.

The Judgment of the Court was delivered by

• CHANDRACHUD, C.J. This is a petition asking that the respondents be committed for contempt for certain statements allegedly made by Respondent !, who is the Chief Minister of Jammu and Kashmir.

Respondent 2 is the Editor of a newspaper called Daily Kashmir Times in which those statements were published, while Respondent 3 is its correspondent.

In the issue of the Daily Kashmir Times dated November 13, 1982, a news item appeared under the caption "CM asks engineers to forcibly occupy club building". According to the report, the Chief Minister, while addressing the annual general meeting of the Institute of Engineers, said that the engineers should occupy a certain building forcibly as it would not be possible for them to evict the Amar Singh Club through the norma\ legal process and that he would provide the necessary police assistance for that purpose. The report says that the Chief Minisier advised the Institute of Engineers to move quickly in the matter before the management of the Club could obtain a stay order from the Court.

Another new.s item appeared m the same newspaper on November 23, 1982 under the caption "Chief Minister says he will never accept courts' stay orders". According to the report, the Chief Minister, while addressing a rally of Judicial Employees' Welfare Accociation, denounced and ridiculed the judiciary by saying that "justice is being bought in the judicial courts". Taking exception to the frequent stay orders issued by the Courts against the Government, the Chief Minister is alleged to have said : "I will never honour these stay orders even if I am hanged", that justice could be bought with money and that this task could be performed conveniently by any leading lawyer. The news item concludes by saying that later, the Chief Minister expressed his regret to the Chief Justice and other Judges of the High Court who were present at the meeting, explaining that the strong words nsed by him were the voice of his conscience hut, otherwise, he had the greatest regard

I _;;.,_ -

i '

M.R. PARASHAR v. PAROOQ ABDULLAH (Chandrachud, C.J.) 163

for the judiciary, and that he ouly wanted quick justice for the people.

On March 18, 1983 a riotice was issued by this Court to the respondents asking them to show cause why action under the Contempt of Courts Act, 1971 should not be taken against them. Since one of the respondents is a Chief Minister, we assumed that there would be no difficulty in serving the notice upon him and he would file his reply promptly, in view of the seriousness of the ailegations made against him. But, until September 26, 1983 no counter-affidavit was filed in the matter. When the Contempt Petition was called out on that date, Mr .. Altaf Ahmed, accepted the notice on behalf of the Chief Minister. On that date, the Court directed the Chief Minister to file his counter-affidavit within four weeks. On October 21, 1983 the Registry submitted a report to the Court that Mr. Altaf Ahmed had not yet filed his appearance for the Chief Minister. On November 21, 1983 an affidavit dated November 9,· 1983 of the Chief Minister was taken on record. Since the Chief Minister denied by that affidevit that lie had made the kind of statements attributed to him, we issued a specific direction that Responden(2, the Editor of Daily Kashinir rimes, should appear in person before the Court on November 28, 1983. That was with a view to obtaining his explanation as to how the newsprper came to publish the various statements which the Chief Minister denied he had ever made.

Respondent 2 appeared before. us on' November 28, !983 and stuck to the versioff published in the newspaper. In the light of that, we reverted to the counter-affidavit filed by the Chief Minister when we found that it did not traverse the allegations of the petitioners satisfactorily.

We therefore directed him to file a further affidavit dealing with the allegations against him clearly and specifi cally. In pursuance of that direction, Respondent I filed an affidavit dated December 14, 1983:

By his affidavit Uated January 9, 1984, Respondent 2 has adhered to. his original stand that the report which appeared in the Daily Kashmir Times was true and correct.

According to him, the Chief Minister did make the various statements complained of and that bis denial is untrue. .

If we were satisfied that the Chief Minister had made the statements attributed to him, it would have been a serious matter.

Then, we could not have dismissed the perora!Jon as an ill-tempered

764 SUPPJ!Mll COURT RBl>OilTS [1984) 2 s.c.a.

outburst of an uninformed person. Considering the high position which Chief Ministers occupy in the public life of our country, their words and deeds .have to be presumed to be intended. The defence

that what was said or done was not intended is not open to persons occupying high public offices. The formal expression of regard for the courts under the pressure of a contempt notice becomes a mere escape if speeches and writings betray defiance of judicial authority and constitute an exhortation to the public to disregard orders passed by courts. But, the Chief Minister denies to have made the utterances, as stoutly as the editor asserts that the reports of the speeches published in bis newspaper are true. There is word against word, and no preponderating circumstance which, objectively, compels the acceptance of the word of one in preference to the word of the other. We have two responsible persons before us who pursue honourable professions : one is the Chief Minister of a State and the other is the editor of a newspaper. Both cannot be true in their

contentions before us.

Ono of them bas clearly violated the law of contempt. If the Chief Minister .said what is alleged, be is in contempt. If he has not, the editor has committed contempt by publishing a false report of a scurrilous speech that was never made.

In face of denial by one and an assertion by the other without more, it is difficult to decide who is righ(. On one hand is the tendency to ridicule the system of justice and malign those who administer it.

On the other is the propensity of the fourth estate for some little .

sensation and its political invJlvement. When political considerations pollute the stream of life, sifting truth from falsehood becomes a formidable and forbidding task In these circumstances, we are unable to record a positive finding that the allegation that the Chief Minister made the particular statements is proved beyond a reasonable doubt. What is involved in this petition is criminal contempt and, therefore, it is necessary to apply that particlar standard of proof.

There is one circumstance which puts us on our guard in acc!'pting the contempt petition. That circumstance is that though, during the course of arguments, it was stated at the Bar on behalf G of the petitioners that the learned Judges of the Jammu & Kashmir High Court were present at one of the functions and that they walked out of the meeting on hearing the 'abusive' language used by the Chief Minister, no attempt was made to establish the truth of that assertion. A walk-out by Judges of the High Court during the speech of the Chief Minister or soon after he ended it, would have lent considerable weight to the allegation that the statements made H by the Chief Minister were open to grave object ion.

' ,.

But we record the finding of 'not guilty' with a caveat. It is not for us to advi•e a chosen representative of the people as to how he should conduct his public affairs and what precautions he sl)ould take in order to protect himself from similar allegations in future.

But, it causes us some surprise that there is on official record whatsoever of the speeches made by the Chief Minister at the two functions.

He was invited' at those functions .in his capacity as the Chief Minister. And, admittedly, he spoke at those functions.

With the little knowledge that we have of these matters, we suppose that when a Chief Minister makes a formal speech, an official record of the speech is generally available. If he speaks from a prepared text, that forms the record of what he spoke. But, whether he speaks from a text or speaks extempore, it is unlikely, in the times iu which we live, that a speech made by a Chief Minister on a formal occasion will not be taken down or tape-recorded. Tapes have become a part of our life, public and private, sometimes to the point of annoyance. In times when mechanical gadgets have become the order of the day and 'taping', aspccially, h_as become a common practice, it is surprising that no one taped or took down the speeches of a person as important as the Chief Minister. No written record, kept contemporaneously or prepared soon after, is cited to contradict the allegation that the Chief Minister scandalized the Courts and assailed.the characler of Judges. As we said, it is not for us to advise any one, least of all those who, in the discharge of their onerous responsibilities, liave their own select group of advisers.

But, we cannot restrain the observation that it is so much safer for persons who have to make frequent public appearances to have their utterances duly put on paper, before of soon after the event. For those who have nothing to conceal or fear, that is a prudent course of action. For the rest, a constant friction with the law of contempt is inevitable. The former will lay their cards on the table and be cleared .. The latter have to live in the hope that the rigorous standard of 'proof beyond a reasonable doubt' will act as their saviour. The latter course of conduct leaves much to be desired from the point of view of men of honour. Courts are not astute to resort to their power to punish any one for criminal contempt. But that reluctnance should not be overtaxed.

The reluctance of courts to resort to the provisions of the Contempt of Courts Act springs from their r.egard for the rule of law .. The role of a p'osecutor is incompatible with the role of a judge. In matters involving allegations of criminal contempt of Court, these roles are combined and the Court has to act both as a

SUPRIIME COURT REORTS [1984] 2 s.c.a.

prosecutor and as a judge. True, that it acts in order to uphold the authority of law and not in defence of this or that particular judge.

But an order punishing a person for such contempt is likely to create the impression, more so in the mind of lay observers, that the judges have acted in defeuce of themselves. Courts do not like to create such an impression even unwittingly. Secondly, the right of free speech is an important right of the citizen, in the exercise of which he is .entitled to bring to the notice of the public at large the infirmities from which any institution snffers, including institutions which administer justice. Indeed, the right to offer healthy and constructive criticism which is fair iu spirit must be left unimpaired in the interest of public institutions themselves. Critics are instruments of reforms, not those actuated by malice but those who are iuspired by the spirit of public weal.

Bona fide criticism of any system or institution is aimed at inducing the administrators ofthat system or institution to look inwards and improve its public image.

Courts do not like to assume the posture that they are above criticism and that their functioning needs no improvement. But it is necessary to make it clear that thongh law does not restrain the expression of disapprobation aga/nst what is done in or by courts of law, the .liberty of free expression is not to be confounded with a licence to make unfounded allegations of corruption against the judiciary. The abuse of the liberty of free speech and expression carries the case nearer the law of contempt.

We would also like to remind those who criticise the judiciary that it has no. forum from which to defend itself. The legislature can act in defence of itself from the floor of the House. It enjoys privileges which are beyond the reach of law. The executive is all powerful and has ample resourses and media at its command to explain its actions and, if need be, to counter-attack. Those who attack the judiciary must remember that they are attacking an institution which is indispensable for. the survival of the rule of law but which has no means of defending itself. In the very nature of things, it cannot engage itself in an open war, nor indulge in releasing contradictions. The sword of justice is in the hands of the Goddess of Justice, not in the hands of mortal judges. Therefore, Judges must receive the due protection of law from unfounded attacks on their character.

The Chief Minister has stated in his affidavit that be spoke extempore.

We arc ilot on that. In the first place, extempore speeehes confer 110 greater immunity 011 the speaker than the

speeches made from prepared texts.

Secondly, extempore speeches are not to be made without the application of a careful mind. That is not the definition of an extempore speech. Thirdly, more the extempore, greater the need to keep a written record of the spoken word. In the written record lies the safety of the public speaker, though not, perhaps, the benefit of posterity.

Jn the result, we dismiss the contempt petition.

P.B.H.

Petition dismissed.

M.R. PARASHAR AND ORS

FAROOQ ABDULLAH AND ORS

January 31, 1984

A.P. SEN, J.J

Contempt of Courts Act

March 18, 1983

November 21, 1983

November 9, 1983

Art. 129

Section 15

A Subhash Sharma

N. M. Popli

K. R. R. Pillai

S. N. Kacker

Altaf Ahmad

M. C. Bhandare

E. c. Agarwa

Indira Saivlmey

CHANDRACHUD

Daily Kashmir Times

November 13, 1982

Amar Singh Club

November 23, 1982

Judicial Employees' Welfare Accociation

September 26, 1983

Altaf Ahmed

October 21, 1983

November 9,· 1983

November 28, 1983

November 28, !

December 14, 1983

Jammu & Kashmir High Court

Contempt of Courts Act