CASE STUDY

Re: Tushar Kanti Ghosh (Editor), Amrit Bazar Patrika

v/s

Unknown

(On 8 April, 1935)

AIR 1935 Cal 419

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 COURT COMPOSITIONS

Full Bench Court

 Derbyshire, C.J.
 Mukerji, J.,
 Costello, J.,
 Lort-Williams, J
 Jack, J

DATE OF JUDGEMENT : on 5th April,1935

REPRESENTATIONS FROM BOTH SIDES

Counsel for Petitioner

Editor was represented by

 Sir Tej Bahadur Sapru

 Mr. C.C. Biswas,

Printer and Publisher was represented by

 Mr. S.N. Banerjee

 Mr. S.C. Mitter.

Counsel for respondent

 Mr. Jowitt

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INTRODUCTION
Tushar Kanti Ghosh (September 21, 1898 - August 29, 1994) was an Indian journalist and
author. For sixty years, until shortly before his death, Ghosh was the editor of the English-
language Amrita Bazar Patrika newspaper in Kolkata. He also served as the leader of promi-
nent journalism organizations such as the International Press Institute and the   Common
wealth Press Union. Ghosh was known as the "grand old man of Indian journalism " and "the
dean of Indian journalism" for his contributions to the country's free press. Ghosh rose to
prominence as a journalist in the Indian independence movement. He was a supporter of
Mahatma Gandhi and the non-violence movement. British colonial authorities imprisoned
Ghosh in 1935 for an article which attacked the authority of British judges.

In the case of Re: Tushar Kanti Ghosh (Editor), Amrit Bazar Patrika v/s Unknown AIR 1935
Cal 419 (decided On 8 April, 1935) criminal contempt and its elements were been put to
challenge and also the trial procedure adopted on that. The distinction between criminal and
non-criminal contempt need not detain us; there may oftentimes be a difficulty on finding
first authority for deciding where the line is to be drawn, and secondly, instances in practice
for drawing it; yet that line has always been recognised. But the general principles which
should guide Courts in the matter of the exercise or non-exercise of the summary jurisdiction
cannot and ought not to differ, no matter what particular division or jurisdiction
such Courts may be sitting to deal with or exercise, unless it be that it is only the dignity of
the Court that is to be regarded-a proposition which cannot be supported.

The object of the discipline enforced by the Court in case of contempt of Court, is not to

vindicate the dignity of the Court or the person of the Judge but to prevent undue interference
with the administration of justice. The object of the power to punish summarily is protective
and admonitory; the reason of the Court's jurisdiction to commit for contempt is not for the
protection of the dignity of the Court or of its individual members but for the protection of
the public, though it may be and often is that the public are to be protected by the upholding
and maintaining untarnished the glory and reputation of the Court as regards its authority,
fairness and impartiality. In a long line of cases the true measure of the jurisdiction and the
principles determining the occasion for its legitimate use have been explained. And this case
been a prominent case with respect to the these things.

Tushar Kanti Ghosh was a freedom fighter and it can be understood according to a possibly
apocryphal story, the colonial Governor of Bengal Province once informed Ghosh that while
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he read Ghosh's paper regularly, its grammar was imperfect and "it does some violence to the
English language." Ghosh reportedly replied, "That, Your Excellency, is my contribution to
the freedom struggle.

In this case Mr. Banerji suggested that the words were a criticism of the administration of the
Court, not of its judicial work. If so, how could the judiciary be said to be robbed of its
independence? Further it was the independence of the judiciary, not the independence of the
administration of the Court "which at one time attracted the attention of the whole country."
The whole country might know of the judiciary of the Court, but it could hardly know of the
administrative side of the Court which is of much lesser importance. With regard to the
contention that it is not contempt of Court because it has not arisen out of any case which has
been heard or a case pending, it must be remembered that there are at all times many cases
pending in this Court in which the executive in some branch or other is concerned. Such
cases both on the criminal and civil sides of the Court are day in day out being tried or
waiting to be tried.

FACTS OF THE CASE 4

On 21st March 1935, a speech was made in the Legislative Council of Bengal by Mr. N.K.
Basu in which an attack was made upon the Chief Justice and Judges of this Court. On 23rd
March this speech was reported in the Amrit Bazar Patrika, a newspaper having a large
circulation in Calcutta and other parts of Bengal. In the same issue of the newspaper a leader
appeared headed "Calcutta High Court". After reading the said leader which was formally
brought to the notice of the Judges of this Court upon an affidavit sworn by Mr. Collet, the
Registrar of this Court on its Original Side.

On 28th March after consultation with the Judges of the Court, directed that a rule should
issue upon the Editor (Tushar Kanti Ghose) and the Printer and Publisher (Tarit Kanti
Biswas) ordering that the two said persons should show cause before this Court, on 5th April,
why they should not be committed or otherwise dealt with according to law for contempt of
Court alleged to have been committed by them in having unlawfully published in the said
issue of the said newspaper the article mentioned. The printer and publisher was served with
the rule on 29th March, but the Editor could not be served, because of his absence from
Calcutta, until the 1st April. In the meantime, in its issue of 30th March the Amrita Bazar
Patrika published the salient parts of the rule (except the leader) in the paper.

On 1st April, Mr. Collet applied to a Bench of this Court consisting of Costello, J., and
myself for leave to serve notice of motion of less than four days. Such leave was granted,
although in my view it was not necessary, lest any question should arise as regards the length
of service later. The Editor was served on 1st April. On the following day an application was
made by Mr. Biswas on behalf of the Editor that the returnable date for the Rule be made 8th
April, but this was refused by the Bench consisting of Costello, J., and myself. At the hearing
of the said application by Mr. Biswas mentioned that the Amrita Bazar Patrika had published
the rule as aforesaid in its issue of 30th March and this was not denied by Mr. Biswas.

Mr. Biswas stated that he did not intend to raise any question as to validity of service. On the
same day, 2nd April, permission was asked on behalf of the Editor that Sir Tej Bahadur
Sapru, an advocate practising in the Allahabad High Court, should be granted permission to
appear for the Editor. Such permission was granted by me. The affidavit of Mr. Collet, the

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Rule and the copy of the Amrita Bazar Patrika of Saturday, 23rd March, are before the Court,
as also are affidavits of the Editor and the Printer and Publisher which were filed and
delivered to the Court on 4th April. No objection has been taken to the length of notice; and
from the affidavits filed by the respondents it is clear that they have had ample time in which
to prepare their reply. The matter came on for hearing before a Full Bench of this Court.

ISSUES

 Whether a scandalisation of the Court is a contempt deserving of being dealt with

summarily is to examine the circumstances of the case?
 Whether in reality there is a tendency in the offending publication to obstruct the
ordinary course of justice or prejudice the trial.?
 Whether the contempt of court charges can be sustained?
 Whether the summary proceedings of trial is valid with the contempt charges ?
 Whether any Injustice happened due course over trial and procedure ?

PROVISION OF LAW

Section 121A in The Indian Penal Code

Conspiracy to commit offences punishable by section 121.—Whoever within or

without conspires to commit any of the offences punishable by section 121,  or conspires to
overawe, by means of criminal force or the show of criminal force,  [the Central Government
or any  [State] Government  shall be punished with  [imprisonment for life], or with
imprisonment of either description which may extend to ten years, 89 [and shall also be liable
to fine]. Explanation.—To constitute a conspiracy under this section, it is not necessary that
any act or illegal omission shall make place in pursuance thereof.

Section 21 in The Indian Penal Code

“Public servant”.—The words “public servant” denote a person falling under any of the
descriptions hereinafter following; namely:— 

[(Third) —Every Judge including any person empowered by law to discharge, whether by

himself or as a member of any body of persons, any adjudicatory functions;]

(Fourth) — Every officer of a Court of Justice  [(including a liquidator, receiver or

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commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law
or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath, or to interpret, or to
preserve order in the Court, and every person specially authorized by a Court of Justice to
perform any of such duties;

(Fifth) — Every juryman, assessor, or member of a panchayat assisting a Court of Justice or

public servant;

Article 129 in The Constitution Of India 1949

Supreme Court to be a court of record The Supreme Court shall be a court of record and shall
have all the powers of such a court including the power to punish for contempt of itself

Article 142 in The Constitution Of India 1949

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The
Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as
is necessary for doing complete justice in any cause or matter pending before it, and any
decree so passed or orders so made shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court
shall, as respects the whole of the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any person, the discovery or production of
any documents, or the investigation or punishment of any contempt of itself

Article 19(1)(a) in The Constitution Of India 1949

(a) to freedom of speech and expression;

Article 19(2) in The Constitution Of India 1949

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public

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order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence

Section 194, Criminal P.C.

(1) The High Court may take cognizance of any offence upon a commitment made to it in
manner hereinafter provided. Nothing herein contained shall be deemed to affect the
provisions of any Letters Patent granted under the High Courts Act, 1861, or any other
provisions of this Code.

(2) (a) Notwithstanding anything in this Code contained, the Advocate-General may, with the
previous sanction of the Governor-General in Council or the Local Government exhibit to the
High Court, against persons subject to the jurisdiction of the High Court, informations for all
purposes for which Her Majesty's Attorney General may exhibit informations on behalf of the
Crown in the High Court of Justice in England. (b) Such proceedings may be taken upon
every such information as may lawfully be taken in the case of similar informations filed by
Her Majesty's Attorney General so far as the circumstances of the case and the practice and
procedure of the said High Court will admit.

ARGUMENT BY PETITIONER

Sir Tej Bahadur argued that the article as a whole was not a contempt of Court, or if one, only
a technical contempt not obstructing the course of justice, nor interfering with any trial and
that the construction most favourable to the respondents should be placed upon it. He then
proceeded to argue that having regard to the nature of the article, the Court had no
jurisdiction to take this summary procedure; that if it did amount to contempt, the proper
procedure was by way of information under Section 194, Criminal P. C; that other legal
remedies were open to this Court to protect its honour; and that the Law Member, S

ir B.L. Mitter, had in the Legislative. Council vindicated the Court. With regard to the
proceedings in the Legislative Council, this Court cannot take any action. With regard to the
words, "Every word of Mr. N.K. Basu was true", the Court decided to take no action upon
them as it considered that the subsequent words reflecting on the Chief Justice and the Judges
and their independence were far more serious. As regards the contention that Section 194,
Criminal P.C., provided the proper remedy

The rest of the section is not relevant. It will be noticed that for any proceedings
under Section 194, Criminal P.C., to be taken, the sanction of the Governor-General or the
Local Government is necessary. In previous cases of contempt of Court it has been the
practice of this Court to issue a rule upon its own motion-see the case of Surendra Nath
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Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109, where a libel
was published concerning one of the Judges regarding his conduct in a case which had
concluded, and this Court acted by way of a rule and summary procedure. The respondent
contended that he ought to be proceeded against under the provisions of the Penal
Code and the Criminal Procedure Code, but this Court took the view that summary procedure
was the proper procedure and on a consideration of the matter in the Privy Council it was
held that this procedure was correct.

The same point was also taken in In the matter of the Amrita Bazar Patrika, 1918 Cal 988-and
overruled-see per Ashutosh Mukerjee, J. at pp. 541-542. That the summary jurisdiction in
respect of a contempt of this Court which is a Court of Record does exist and has been
exercised is beyond all question. It was then argued by Sir Tej Bahadur Sapru that the words
complained of could be no contempt of Court because they did not refer to any case which
has been heard or is pending; also that contempt of Court proceedings for scandalizing the
Court itself had become obsolete. The latter contention was based upon the remarks of Lord
Morris in McLeod v. St. Aubyn (1899) AC 549, at p. 561, which says:

It (i.e. the summary process for contempt by scandalising the Court) is a summary process,
and should be used only from a sense of duty and under the pressure of public necessity; for
there can be no landmarks pointing out the boundaries in all cases. Committals for contempt
of Court by scandalising the Court itself have become obsolete in this country. Courts are
satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.
But it must be considered that in small colonies, consisting principally of coloured
populations, the enforcement of proper cases of committal for contempt of Court for attacks
on the Court may be absolutely necessary to preserve in such a community the dignity of and
respect for the Court.

Sir Tej Bahadur Sapru appearing on behalf of the Editor and Mr. Banerjee appearing on
behalf of the Printer and Publisher have endeavoured to make out that the word
"administration," which appears in the first sentence with which the article opens, plainly
indicates that the writer was dealing with the subject of administration of the Calcutta High
Court in the sense of the administrative supervision that it exercises over subordinate Courts.
It has also been argued that the articles expressed the sentiments of the public and wanted the

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Judges to appreciate them because it was the duty of a newspaper to call attention to the
sentiment of the public with regard to the administration of the High Court.

ARGUMENT BY RESPONDENT
Mr. Jowitt (Counsel for respondent) in his extremely able argument had used from time to
time phrases beginning with a conditional clause: If on the fair meaning of the words, they
mean so and so; then he expressed apology. In the Court's opinion there was no room for
these conditional clauses. The words meant that in the opinion of the writer it was impossible
for a person holding certain views to get a fair hearing before that Judge. If the expressions
had ended with these conditions, it would have been necessary to take a very serious view of
the matter, but before the end that which had been conditional and reserved became
unconditional and unreserved and indeed was in that form in Mr. Sharpe's affidavit.

That such is the law in India is clear from the judgment of Ashutosh Mukerjee, J., in In the
matter of the Amrita Bazar Patrika,1918 Cal 988 at p. 543, where the learned Judge says as
regards the remarks of Lord Morris in McLeod v. St. Aubyn (1899) AC 549: I do not read the
statement that committals for contempts of Courts by scandalising the Court itself had
become obsolete in England, as destructive of the authority of the earlier decisions on the
subject. Indeed, the proposition taken literally seems to go too far and it is significant that, in
the very next year, proceedings were taken in England for contempt of Court in the case of
Reg v. Gray (1900) 2 QB 36. There can think be no doubt that where the circumstances
clearly demand action of this description, the Court will not hesitate to exercise its undoubted
power to punish on summary process the contempt of scandalising it and thereby attempting
to interfere with the due course of justice.

There can be no question therefore that the right to punish by summary procedure contempt
of Court by scandalising the Court still exists. As regards the contention that there can be no
contempt of Court except in respect of a case which has been heard or is pending, I am
unable to accept this proposition. In Reg v. Gray (1900) 2 QB 36 at page 40, Lord Russell
said: Any act done or writing published calculated to bring a Court or a Judge of the Court
into contempt, or lower his authority, is a contempt of Court. That is one class of contempt.
Further, any act done or writing published calculated to obstruct or interfere with the due
course of justice or the lawful process of the Courts is a contempt of Court. The former class
belongs to the category which Lord Hardwicks, L.C., characterised as 'scandalising a Court or
a Judge.'

That description of that class of contempt is to be taken subject to one and an important 10
qualification. Judges and Courts are alike open to criticism, and if reasonable argument or
expostulation is offered against any judicial act as contrary to law or the public good, no
Court could or would treat that as contempt of Court. The law ought not to be astute in such
cases to criticise adversely what under such circumstances and with such an object is
published; but it is to be remembered that in this matter the liberty of the press is no greater
and no less than the liberty of every subject of the Queen. We have therefore to deal with it as
a case of contempt and we have to deal with it brevi manu. This is not a new-fangled
jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part. It is a
jurisdiction the history, purpose and extent of which are admirably treated in the opinion of
Wilmot, C.J. (then Wilmot, J.) in his Opinions and Judgments, in Rex v. Almon (1765)
Wilmot's Opinions 243.

Now turn to the words complained of and consider what is their ordinary meaning. They
consist of two allegations: (1) that the Chief Justice and Judges take a peculiar delight in
hobnobbing with the Executive; and (2) with the result that the judiciary is robbed of its
independence which at one time attracted the admiration of the whole country. The word
"hobnobbing" is defined in dictionaries as "drinking with or being on familiar terms with." If
the first allegation had stood alone, it would be scurrilous abuse with a suggestion which
might or might not have been contempt of Court; but when the words follow: "with the result
the judiciary is robbed of its independence which at one time attracted the admiration of the
whole country" the words beyond doubt make a very serious allegation upon the Chief
Justice and Judges of this Court in their judicial capacities.

DECISION OF COURT [JUDGEMENT]

Tushar Kanti Ghose, you have been adjudged by this Court to be guilty of contempt of Court
by reason of the article that has been complained of. That article was capable of great public
mischief. Tushar Kanti Ghose, are responsible in law for the publication of that article and
have, in fact, accepted responsibility for it in affidavit. It have said that you were not there
when it was written and that it was inserted in your absence, but that you take responsibility
for it; and in this Court you have attempted, as far as you could, to justify it; your duty, if
absent from the newspaper office, is to give such general or particular instructions that
articles of this nature which could be contempt of Court should not be published.

Apparently no such instructions could have been given and you accepted the responsibility
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for and approve of the article. The Judges of this Court know their duty; they are doing their
duty and they will do their duty regardless of the consequences without fear or favour. No
apology or regret has come from you and that leaves us only one course, and that is to send
you to prison. The sentence and order of this Court is that you be detained in simple
imprisonment for a period of three months.

REASON FOR THE DECISION

The position of this power of attachment is made clear by the judgment in Attorney-General
v. Kissane, 32 Ir 220. Each of the three procedures was open for contempt of Court. The
cases show that for many years before the hearing of McLeod v. St. Aubyn (1899) AC 549
the practice of proceeding by attachment had not been used, so much so that Lord Morris
stated in that case that it had become obsolete. However this may be, it is clear that it has
been frequently resorted to both in England and Ireland in the succeeding years during which
the press has attained such a widespread influence, so that, though it may have been at one
time dormant, it had at the date of the Constitution become a living procedure, with all its
ancient powers. The latest case is but a few weeks age, Rex v. Editor of the New Statesman
(1928) 44 TLR 301, reported in the current Times Law Reports.

Meredith, J. although differing from the other members of the Court on the merits of the
particular case agreed with the President and Hanna, J., on the question of the extent of the
jurisdiction of the Court. In my opinion it cannot be gain said that the Courts of Record have
an inherent power of punishing and in a summary way any act done or writing published
calculated to bring the Court or a Judge of the Court into contempt or to lower its authority,
(i.e., the class of contempt characterised by Lord Hardwicke in St. James's Evening Post
Case, Roach v. Garvan, (or Hall) (1742) 2 Atk 469 at p. 471 as scandalising a Court or a
Judge). That is part of the common law of England and was so at the time when that law was
introduced into India in the eighteenth century, and thence forward administered by the
Courts in this country. Thus it comes about that the High Courts in India have inherited or
acquired by charter a similar power.

The distinction between criminal and non-criminal contempt need not detain us; there may
oftentimes be a difficulty on finding first authority for deciding where the line is to be drawn,
and secondly, instances in practice for drawing it; yet that line has always been recognised:
see per Lord Brougham L.C. in Wellesley v. Duke of Baufort (1831) 2 Russ & M 639. But I

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take it that the general principles which should guide Courts in the matter of the exercise or
non-exercise of the summary jurisdiction cannot and ought not to differ, no matter what
particular division or jurisdiction such Courts may be sitting to deal with or exercise, unless it
be that it is only the dignity of the Court that is to be regarded-a proposition which cannot be
supported. The object of the discipline enforced by the Court in case of contempt of Court,
says Bowen, L.J., is not to vindicate the dignity of the Court or the person of the Judge but to
prevent undue interference with the administration of justice: Helmore v. Smith (1886) 35 Ch
D 449.

The object of the power to punish summarily is protective and admonitory; the reason of the
Court's jurisdiction to commit for contempt is not for the protection of the dignity of the
Court or of its individual members but for the protection of the public, though it may be and
often is that the public are to be protected by the upholding and maintaining untarnished the
glory and reputation of the Court as regards its authority, fairness and impartiality. This rule
has been issued on Tushar Kanti Ghosh, the Editor, and Tarit Kanti Biswas, the Printer and
Publisher of a newspaper called the "Amrita Bazar Patrika," to show cause why they should
not be dealt with in accordance with law for publishing in that newspaper of 23rd March
1935, an article on the Calcutta High Court. The article is headed "Calcutta High Court." It
consists of two paragraphs. In para. 1 reference was made to a discussion which was said to
have taken place the day before in the Bengal Legislature Council about the administration of
the Calcutta High Court.

Tarit Kanti Biswas: he was the Printer and Publisher of the newspaper and he have a
responsibility not to publish such articles. He have made a plea of lack of knowledge of
English. That is no excuse. If He cannot perform the duties of your office you ought not to
hold that office. As long as you hold that office you must according to law perform the duties
of that office. In this case it is obvious that the duties of your office were not performed, or
that article would not have been published. It was before this Court in 1917 in a case in
which you and others were charged with contempt of Court by publishing an article upon the
then Chief Justice reflecting on the impartiality of his conduct or administration of justice in
this Court. He were on that occasion subjected to a fine. That ought to have put you on your
guard and taught you a lesson for subsequent events. Apparently it did not. He adopt the same
attitude as the Editor, and you make the same plea. In your case neither apology nor excuse
has been offered for your conduct and the Court has only one course which it can take in your
case and that is to send you to prison. The order of this Court is that you be detained in
simple imprisonment for a period of one calendar month.
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In this case the only two points raised in defence in which there appears to be any substance
are: (1) that the objectionable passage in the newspaper article merely criticizes the High
Court in its administrative capacity, and not in its judicial capacity, and therefore cannot be
said to constitute contempt of Court since it does not in any way reflect on the judicial
independence of the Court. This construction never occurred to me until suggested by the
learned advocates appearing for the accused. A certain colour is however lent to it by the
reference to administration at the commencement of the passage complained of, which runs
as follows:

The conclude that they are glad to find that in the Bengal Legislative Council , there was a
discussion about the administration of the High Court. Every word o£ Mr. N.K. Basu was
true.Then comes the statement that the Chief Justice and the Judges find a peculiar delight in
hobnobbing with the Executive with the result that the judiciary is robbed of its independence
which at one time attracted the admiration of the whole country.

In the present case the contempt complained of would tend to hamper the administration of
justice in every case in which the executive were specially interested by diminishing the
confidence of the parties in the independence of the judiciary, e.g., in cases of a political
character. The only alternative procedure in this country is that under Section 194, Criminal
P.C. This procedure has not, I think, been employed in any High Court in cases of this kind of
contempt of the High Court. It depends upon the exhibition of information by the Advocate-
General with the previous sanction of the Governor-General in Council or the Local
Government, and would therefore place the maintenance of regard for the Court entirely in
the hands of the Executive.

Moreover, in the words of Will, J., in Rex v. Davies (1906) 1 KB 32 at p. 41, it is "too
dilatory and too inconvenient to afford any satisfactory remedy." There would be much to be
said for the procedure under Section 194, Criminal P.C., in a case in which there could be any
doubt as to the meaning of the words used, and which had therefore better be left to the
decision of a jury, but where, as in this case, there is no ambiguity in the words used, the facts
are not disputed, and the accused are thoroughly able and willing to defend themselves in
summary procedure, there seems to be no reason why the Court should not adopt it. I think
therefore that the Court was entitled in this case to take summary proceedings against the
Opposite parties and agree in finding that they are guilty of the contempt charged, and liable

14
to be dealt with severely inasmuch as they have not attempted even a conditional apology for
the language used.
CRITICAL COMMENT

I entirely agree with the views expressed by my Lord the Chief Justice. In my opinion the
order or sentence made by this Court on 8th April 1935 was not an order or sentence made in
the exercise of its original criminal jurisdiction. Therefore, this matter is not one which falls
within the purview of the provisions of Clause 41, Letters Patent, of this Court dated 1865.
The proceedings for contempt of Court of summary nature are proceedings derived from the
Common Law of England. There is inherent right to take such proceedings in this Court by
virtue of its position as a Superior Court of Record. Moreover, the power of this Court to
exercise jurisdiction of a summary character in a case of contempt was conferred or affirmed
by the Charter under which the Supreme Court was originally established: which power this
Court has inherited. The power to punish for a contempt of Court is a power sui generis. In
my opinion it is not a power which is or can be exercised under the ordinary criminal
jurisdiction of the Court.

The judgment of Sir Barnes Peacock in Surendra Nath Banerjee v. Chief Justice and Judges
of Calcutta High Court (1884) 10 Cal 109 in my view puts this matter beyond all question
whatever and indicates that when this Court as a Court of Record thinks it fit to exercise
summary jurisdiction and under that jurisdiction punishes for a contempt of Court it is not
open to the person concerned to ask this Court for leave to appeal to His Majesty in Council.
With regard to the observation of Lord Morris in McLeod v. St. Aubyn (1899) AC 549, as I
pointed out in the judgment which I gave when this matter was before the Court on 8th April
last, that observation is clearly not only in the nature of an obiter dictum but a statement
which could only have been intended to express the opinion of the learned Judge with regard
to the state of fact existing in England at the time the observation was made. But whether one
takes that observation as a statement of fact or even as an expression of opinion with regard
to the state of the law it is obvious from the subsequent events from the proceedings and
decisions in cases which have occurred since the time of Lord Morris that observation even
as a statement with regard to the law was not accurate. In any event, as the Chief Justice has
already pointed out, Lord Morris was speaking solely as regards the state of things in
England. That proposition has no reference whatever either to the state of fact or to the state
of law existing in India.
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In my opinion it is abundantly clear from the judgment in Surendra Nath Banerji's case
(1884) 10 Cal 109 that summary proceedings for a contempt of Court is not only competent
but the decision, that is to say, judgment, order and sentence given in such proceedings must
be taken to be final and not open to appeal. I think this application for leave must be refused.

CONCLUSION

Contempt of court is a matter concerning the fair administration of justice, and aims to punish
any act hurting the dignity and authority of judicial tribunals. Although it is difficult to
accurately assess the origins of contempt law, there is little doubt that it stems from the
common law ideal of supremacy and independence of the judiciary. The champions of this
law proclaim that it is the good faith of the judges which forms the bedrock on which any
system of administration securely rests. Hence, any attempt to shake the people’s confidence
in the courts, amounts to striking at the very root of the system of democracy, and deserves to
be condemned.2 Contempt law has ancient origins and has evolved over time through various
phases of the monarchical legal system.

Digging further, one can in fact find the genesis of the concept in the pre-historic divine
origin theory,3 and also the more recent theory of the Social Contract.4 As the primary
function of the early Monarch was protection of his subjects and consequently administration
of justice, it was of utmost importance that his position should be beyond question. In its
origin, all legal contempt will be found to consist in an offence more or less against the
sovereign himself as the fountainhead of law and justice, or against his Palace, where justice
is administered.5 As society evolved, the authority of the king came to be vested in the office
of the Judge who performed the functions as per the delegated mandate.6 If the authority of
the king is beyond question, so should be the authority of the Judge who is a direct
representative of the king himself. In The case og Tushar Kanti Ghosh (Editor), Amrit Bazar
Patrika v/s Unknown heard by a Special Bench of five Judges including the Chief and Sir Tej
Bahadur Sapru appeared on behalf of the Editor. As the Editor offered no apology or regret
for the views expressed in the editorial article, he was sentenced to simple imprisonment for a
period of three months

It will be noticed that for any proceedings under Section 194, Criminal P.C., to be taken, the
sanction of the Governor-General or the Local Government is necessary. In

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previous cases of contempt of Court it has been the practice of this Court to issue a rule upon
its own motion-see the case of Surendra Nath Banerjee v. Chief Justice and Judges of
Calcutta High Court (1884) 10 Cal 109, where a libel was published concerning one of the
Judges regarding his conduct in a case which had concluded, and this Court acted by way of a
rule and summary procedure. The respondent contended that he ought to be proceeded
against under the provisions of the Penal Code and the Criminal Procedure Code, but
this Court took the view that summary procedure was the proper procedure and on a
consideration of the matter in the Privy Council it was held that this procedure was correct.
The same point was also taken in In the matter of the Amrita Bazar Patrika, 1918 Cal 988-and
overruled-see per Ashutosh Mukerjee, J. at pp. 541-542. That the summary jurisdiction in
respect of a contempt of this Court which is a Court of Record does exist and has been
exercised is beyond all question. It was then argued by Sir Tej Bahadur Sapru that the words
complained of could be no contempt of Court because they did not refer to any case which
has been heard or is pending; also that contempt of Court proceedings for scandalizing
the Court itself had become obsolete. 

This kind of an attitude of the Indian courts has its roots in the pre-independence days when
even the decisions of the Courts were largely guided by colonial interests. In one such
significant case, the defendant in a contempt proceeding who was an editor of an Indian
newspaper had attempted to call evidence to prove his allegations and was refused. While
completely rejecting the possibility of entertaining any justification of contempt of court, the
Court said that even if the writer of a manifesto believed that all he stated therein to be true, if
anything in the manifesto amounted to contempt of court, the writer would not be permitted
to lead evidence to establish the truth of his allegations.

Such attitude continued even after independence as can be observed in the case of Advocate
General v. Seshagiri Rao. In this case, the Court clearly said that it was not permissible for a
defendant to establish the truth of his allegations since the damage is already done. In other
words the Court observed that allegations against the Court “excites in the minds of the
people a general dissatisfaction with all judicial determinations and indisposes their mind to
obey them” which in turn was considered by the Court as a very dangerous obstruction to the
course of justice. This expression has been borrowed in verbatim from the Almon case
decided much earlier by an English court.

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