Aswini Kumar Ghose And Anr. vs Arabinda Bose And Anr.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 12 December 1952

Coram: B.K. Mukherjea, Chandrasekhara Aiyar, Mahajan

In this case, the Court recorded that on 30 October 1952 the newspaper known as the Times of India, which was published from Bombay and New Delhi, printed a leading article under the headline “A disturbing decision.” The article asserted that the Supreme Court, by a majority judgment, had effectively ended the long-criticised dual system that operated in the Calcutta and Bombay High Courts. According to the article, the Supreme Court held that the right of a Supreme Court advocate to practice in any High Court rendered the rule in those High Courts, which required advocates appearing on the Original Side to be instructed by attorneys, inapplicable to such advocates. The article went on to quote a passage that observed that the dual system was considered obsolete and anomalous in the higher judicial arenas of New Delhi and elsewhere. It noted that a conspicuous note at the beginning of the rules framed by the Supreme Court for the enrolment of advocates and agents indicated that the rules were subject to revision and that the judges were contemplating a proposal to abolish the dual system. The passage suggested that the system should be abolished if it had outlived its usefulness and appeared incongruous in the setting of a democratic constitution, but warned against achieving even a laudable purpose by distorting the law. It further declared that politics and policy had no place in the pure realm of law and that courts would better serve the Constitution by discarding extraneous considerations and by steadfastly observing what it termed divine detachment, which it described as the glory of law and the guarantee of justice. The Court then observed that no objection could have been raised against the article if it had limited itself to preaching the doctrine of divine detachment to the courts. However, the Court noted that the article went further by attributing improper motives to the judges, thereby crossing the boundary of fair and bona fide criticism and threatening the dignity and prestige of the Supreme Court. The Court characterised the article as a gross contempt of Court, explaining that creating a public impression that the nation’s highest judges acted on extraneous considerations would erode public confidence in the administration of justice and constitute serious mischief. Consequently, the Court explained that a contempt rule was issued against the respondents. Finally, the Court expressed satisfaction that the editor, printer and publisher of the newspaper, through affidavits filed in the proceedings, had candidly acknowledged that the offending article had exceeded the limits of legitimate criticism, admitted that words or expressions casting reflection upon the Court had slipped into it, and offered an unqualified apology for this first lapse.

The Court observed that the article had exceeded the limits of legitimate criticism because words or expressions that could be interpreted as casting reflection upon the Court and constituting contempt had crept into it. The respondents had expressed sincere regret and had tendered an unreserved and unqualified apology for this first lapse of theirs. The Court further noted that it was not the practice of the Court to issue such rules except in very grave and serious cases and that the Court was never over-sensitive to public criticism; however, when there was a danger of grave mischief being done to the administration of justice, such animadversion could not be ignored or treated with placid equanimity. In this matter the Court was of the same opinion as expressed by the Lords of the Privy Council in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141, where it was observed that “The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men.” In view of the unconditional apology tendered by the respondents and the undertaking they gave to give wide publicity to their regret, the Court decided to drop further proceedings, accepted the apology, and discharged the rule without any order as to costs.