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23. Was it contempt of Court?
I
PROCEEDINGS AGAINST MR. GANDHI AND MR. MAHADEV H, DESAI

[Editor's Note: On 22nd April 1919, B. C. Kennedy, the District Judge of Ahmedabad, addressed a letter to the Registrar of the High Court, Bombay, submitting for the determination of the High Court certain questions regarding the conduct of two barristers and three pleaders who had taken Satyagraha pledge, i.e., a pledge "to refuse civilly to obey the Rowlatt Act and such other laws as a committee to be thereafter appointed may think fit". Gandhiji as the editor and Shri Mahadev Desai as the publisher of Young India, published the said letter with comments thereon in the issue of Young India dated 6-8-1919, while proceedings against those barristers and pleaders under the disciplinary jurisdiction of the High Court were pending. On 11-12-1919, the Registrar of the High Court applied for a rule Nisi calling upon the respondents, Mr. Gandhi and Mr. Desai, to show cause why they should not be committed or otherwise dealt with according to law, for Contempt of Court in respect of the publication of the said letter. The rule was granted by Justice Shah and Justice Crump. The rule was heard by the Hon'ble Justices Marten, Hayward and Kajiji on 3-3-1920. Sir Thomas Strangman and Bahaduiji appeared for the applicant in support of the rule. The respondents, Mr. Gandhi and Mr. Desai appeared in person. In its judgment delivered on 12-3-1920, the High Court observed that comments on or extracts from any pending proceedings before a Court cannot be published unless the leave of the Court was first obtained. Any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Court or to bring a Court or a judge of the Court into contempt or to lower his authority is a Contempt of Court. The Court held that the respondents were guilty of Contempt of Court in publishing the letter pending the hearing of the proceedings and that the comments made on the letter were of a particularly intemperate and reprehensible character and constituted a serious Contempt of Court. The High Court severely reprimanded the respondents and cautioned them both as to their future conduct. The case is reported in 22 Bombay Law Reporter at p. 368 et. seq.]

This rule was heard by the Hon'ble Justices Marten, Hayward and Kajiji on the 3rd inst. (3rd March 1920). The Editor Mr. Gandhi and the Publisher Mr. Desai of Young India were to show cause why they should not be committed for contempt having published with comments in the issue of the 6th August 1919 of their paper, a letter addressed by Mr. Kennedy, District Judge of Ahmedabad, to the Registrar of the High Court complaining of the conduct of certain Satyagrahi lawyers of Ahmedabad.
The Hon'ble Sir Thomas Strangman, Advocate- General with Messrs. Bahadurji and Pocock appeared for the applicant, Mr. Gandhi and Mr. Desai appeared in person.

The Advocate-General, in opening the case, said that the proceedings wer,e in contempt against Mr. Gandhi and Mr. Desai, about whose being Editor and Publisher respectively there was no dispute. It appeared that Mr. Kennedy in April last, finding that certain lawyers in Ahmedabad had- signed the Satyagraha pledge, asked them to explain why their Sanads should not be cancelled for their having signed the pledge, and as he did not consider their explanation satisfactory he addressed a letter to the Registrar of the High Court on the 22nd April 1919. In consequence, two notices were issued by the High Court to the lawyers concerned. A copy of Mr. Kennedy's letter was given by the Registrar to Mr. Divetia, pleader for one of the lawyers, who handed the same to Mr. Kalidas J. Jhaveri, one of the Satyagrahi lawyers, who in turn handed it to Mr. Gandhi. On the 6th of August this letter was published in his paper under the heading. "O'Dwyerism in Ahmedabad" along with an article headed "Shaking Civil Resisters" commenting on the letter. (The Advocate-General at this stage read the letter and the article). It appeared from the article, said he, that by 'O'Dwyer', was meant a disturber of peace. The article said that the District Judge was prejudging the issue. His conduct was described as not only ungentlemanly, but something worse, unpardonable. He was said to be fanning the fire of Bolshevism. Those were shortly the charges made against Mr. Kennedy. Then proceedings took place in the High Court. After the proceedings the Registrar addressed a letter to Mr. Gandhi requesting him to attend the Chief Justice's Chamber to give an explanation as regards the publication of the letter. Mr. Gandhi replied by telegram explaining his inability to attend on the appointed date as he was going to the Punjab, and inquiring if written explanation would be sufficient. The Registrar replied saying that the Chief Justice did not wish to interfere with Mr. Gandhi's appointment and that a written explanation would do. On the 22nd October Mr. Gandhi sent a written explanation in which he stated that the letter was received by him in the ordinary course and that he published it as he believed it was of great public importance and that he thought that he was doing a public service in commenting on it. He, therefore, claimed that in publishing and commenting on the letter, he was within the rights of a journalist. In reply to this the Registrar wrote saying that the Chief Justice was not satisfied with the explanation, but that it would be considered sufficient if an apology in the following terms were published in the next issue of Young India.
Form of Apology
"Whereas on the 6th April 1919 we published in Young India a private letter written by Mr. Kennedy, District Judge of Ahmedabad, to the Registrar of the High Court of Justice at Bombay and whereas on the same date we also published certain comments on the said letter and whereas it has been pointed out to us that pending certain proceedings in the said High Court in connection with the said letter we were not justified in publishing the said letter or in commenting thereon, now we do hereby express our regret and apologize to the Hon'ble the Chief Justice and Judges of the said High Court for the publication of the said letter and the comments thereon."
The Advocate-General said that he submitted with some confidence that it was an apology which the opponent should have published. A milder form of apology, he thought, it was difficult to conceive. Mr. Gandhi, however, did not publish the apology and took counsel's opinion and addressed a letter to the Registrar expressing his inability to apologize. Before the receipt of this letter a notice was ordered by the High Court on the 11th of December to be issued for contempt on which the proceedings were "based. The text of Mr. Gandhi's letter dated 11th December 1919, is as follows: "With reference to your letter regarding the publication of the letter of the District Judge of Ahmedabad in the matter of the Satyagrahi lawyers I beg to state that I have now consulted legal friends and given much anxious consideration to the apology suggested by His Lordship the Chief Justice. But I regret to state that I find myself unable to publish the suggested apology. The document in question came into my possession in the ordinary course and being of great public importance I decided to publish and comment upon it. In doing so I performed, in my humble opinion, a useful public duty at a time when there was great tension and when even the Judiciary was affected by the popular prejudice. I need hardly say that I had no desire whatsoever to prejudge the issues that Their Lordships had to decide. I am anxious to assure His Lordship the Chief Justice that at the time I decided to publish the document in question, I had fully in mind the honour of journalism as also the fact that I was a member of the Bombay Bar and as such expected to be aware of the traditions thereof. But thinking of my action in the light of what has happened I am unable to say that in similar circumstances I would act differently from what I did when I decided to publish and comment upon Mr. Kennedy's letter. Much therefore as I would have liked to act upon His Lordship's suggestion, I feel that I could not conscientiously offer any apology for my action. Should this explanation be not considered sufficient by His Lordship I shall respectfully suffer the penalty that Their Lordships may be pleased to impose upon me. I beg to apologize for the delay caused in replying to your letter. I have been touring continuously in the Punjab and am not likely to be free before the beginning of the next month." A few days before the hearing of the rule Mr. Gandhi addressed a letter to the Registrar dated 27th February with which he enclosed copies of statements which he and Mr. Desai desired to submit before the Court. The text of the two statements is given below:
Mr. Gandhi's Statement
With reference to the Rule Nisi issued against me I beg to state as follows: "Before the issue of the Rule certain correspondence passed between the Registrar of the Honourable Court and myself on the 11th December. I addressed to the Registrar a letter (reproduced above) which sufficiently explains my conduct. I therefore attach a copy of the said letter. I regret that I have not found it possible to accept the advice given by His Lordship the Chief Justice. Moreover, I have been unable to accept the advice because I do not consider that I have committed either a legal or a moral breach by publishing Mr. Kennedy's letter or by commenting on the contents thereof. I am sure that this Honourable Court would not want me to tender an apology unless it be sincere and express regret for an action which I have held to be the privilege and duty of a journalist. I shall, therefore, cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of law. I wish to say with reference to the notice served on Mr. Mahadev Desai, the Publisher, that he published it simply upon my request and advice."
Mr. Desai's Statement
With reference to the Rule Nisi served upon me I beg to state that I have read the statement made by the Editor of Young India and associate myself with the reasoning adopted by the Editor in justification of his action. I shall therefore cheerfully and respectfully abide by any penalty that this Honourable Court may be pleased to inflict on me."
Continuing the Advocate-General proceeded to cite rulings to show what constitutes Contempt of Court. (1900)2 Q.B. Page 36 showed that there were two kinds of contempt : (1) Any act or writing tending to scandalize the court; (2) any act or writing calculated to obstruct or interfere with the due course of justice or the lawful process of the court. The Advocate General submitted that the publication of the letter and the comments thereon constitutes contempt in two respects: (1) in the language of Lord Hardwicke it scandalized Mr. Kennedy; and (2) it was an attempt to interfere with the course of justice. He further said that the High Court could punish for contempt of an inferior court. The District Court of Ahmedabad was under the superintendence of the High Court and it had no power to commit for contempt except for what was done in the face of the court.
Mr. Justice Marten asked if it was Contempt of Court in a civil action to publish the plaint or the written statement.
The Advocate-General replied it was a contempt. The pleadings did not become public documents until the case was heard. The Advocate-General also referred to (1906) 1. KB. page 132, and (1903) 2. KB. He added that publication after trial was different from publication before it. In conclusion the Advocate- General drew the deduction that the gist of Mr. Gandhi's article was that as Mr. Kennedy was fanning the fire of Bolshevism, the High Court, if it acted on his letter, would likewise disturb the peace and fan the fire of Bolshevism.
Mr. Gandhi addressing the Court said that he did not propose to say anything beyond what he had already said in his statement. Esteemed friends had asked him to consider if he was not obstinate in not making the required apology. He had considered the matter over and over again and whatever view the Court "held, he asked them to believe him that nothing was farther from his thoughts than obstinacy. He wished to pay all respect to the Honourable Court. On the other hand he did expect that the Honourable Court would not grudge his paying the same respect to his own sense of honour and to the dignity of journalism. He had heard the Advocate-General carefully to see if anything, he said, could convince him that he had been in the wrong. But he had remained entirely unconvinced. Had he been convinced he would readily have withdrawn his statements and tendered apology. He did not wish to say anything more.
Mr. Justice Marten said that the point of law was against Mr. Gandhi. Mr. Gandhi had said that he was entitled as a journalist to do what he had done. But the Advocate-General had cited authorities against him. Had he any authorities to support his position?
Mr. Gandhi said he differed from the Advocate- General on the point of law, but he did not rest his case such as it was on points of law. He did not wish to argue legal points and go beyond the limits he had set to himself. The Court had before now done justice in many undefended cases and he wished himself to be considered as undefended. He would be entirely content with Their Lordships' finding on points of law.
Mr. Justice Marten reminded Mr. Gandhi that he was himself a member of the Bar and that he could argue out the case from the legal standpoint.
Mr. Gandhi said he was unprepared to do so and repeated that he would be content to take ruling of the Court with regard to law. But since the Court had coaxed him to argue he would say that what he felt was that he had not prejudiced any party. The Hon. the Advocate-General had said that his comments on the District Judge constituted contempt of a Judge. Mr. Gandhi commented on the District Judge not as a Judge but as an individual.
J. Marten: Take the case of a sensational murder trial. Supposing the press commented on the events while the case was going on, what would happen?
Mr. Gandhi: I would respectfully draw distinction as a layman between the two cases. The District Judge writes this letter as a complainant and not as a Judge.
J. Marten: He was writing as a Judge exercising jurisdiction over certain lawyers.
Mr. Gandhi: I agree. But he was not sitting in court to decide an action. I feel again that I am travelling beyond the limits I set to myself. The whole law of Contempt of Court is that one ought not to do anything which might prejudice proceedings before a Court. But here the Judge does something as an individual. I have not done anything to prejudice in any shape or form the judgment of the Judges.
J. Marten: Would it not be dangerous if the press made comments during pendency of proceedings? The Court would cease to be the Tribunal and the press would be the Tribunal instead.
Mr. Gandhi: I would again respectfully draw a distinction. If a son wrongly brought a suit against his father then I would be justified in commenting on the son's conduct in bringing such a suit against his father, without in any way thereby prejudicing the decision of the Court. And do our courts prevent public men from inducing litigants to settle their claims outside? I submit I have committed no contempt. I have prejudiced no party and have made no comment on the action of Mr. Kennedy as a Judge. I am anxious to satisfy the Court that there is not an iota of disrespect shown to the Court in commenting on Mr. Kennedy's letter. I may have erred, and in the view of the Court, erred grievously but I have not done so dishonestly or disrespectfully. I need not add that all that I have said applies to the case of Mr. Desai, the publisher.
J. Marten then drew Mr. Gandhi's attention to a decision in England reported in a recent issue of the London Times whereby the editor, publisher and printer of a newspaper were fined for contempt.
Mr. Gandhi: There also I submit it is possible for me to draw a distinction. While I was in England the famous Mrs. Maybrick's case was going on and the whole newspaper press divided itself into two parties, one condemning Mrs. Maybrick and the other going for the Judge, Mr. Justice Stephen and even suggesting that he was unfit to try the case.
J. Marten: But that was all after trial?
mr. gandhi: No. It was while the case was going on. I followed the proceedings in the case from day to day throughout the many months that it was going on.
J. Marten: It did not go on, Mr. Gandhi, for many months. It went on for some days.
Mr. Gandhi:' Of course here I am speaking subject to correction, but I am quite sure that while the case was going on, the newspaper press was so full with all sorts of innuendoes, insinuations and aspersions, that I am sure I, as a journalist, would not even at this day be able to go to the length they went.
Mr. Desai stated that he entirely associated himself with the sentiment expressed by Mr. Gandhi. He was sure he was infinitely more incapable of arguing the case than Mr. Gandhi and he would not presume to do that. He was prepared to cheerfully and respectfully abide by whatever decision Their Lordships were pleased to give. The judgement was reserved.

Young India, 10-3-1920, pp. 6-8

II
CONTEMPT CASE JUDGMENT
After stating the facts of the case which are substantially as we have already given, His Lordship Justice Marten observes:

Cases 'sub judice'

As to the general principles of law to be applied to this case, there can, I think, be no doubt. Speaking generally, it is not permissible to publish comments on or extracts from any pending proceedings in this Court unless the leave of the Court be first obtained. Many good reasons may be advanced for this, but the underlying principle is, I think, that of the due administration of justice for the public benefit, one incident of which demands that as a matter of common fairness, both parties shall be heard at the same time and in presence of each other on proper evidence by an independent and unprejudiced tribunal.
The object would be frustrated if newspapers were free to comment on or to make extracts from proceedings which were still sub judice. It matters not whether those comments and extracts favour prosecutors or accused, plaintiff or defendant. The vice is the interference with what are the Court's duty and not a newspaper's, viz. the decision of the pending case.


Law as to Contempt

After citing numerous English authorities with respect to Contempt of Court, His Lordship proceeds: One can easily see the evils which would arise if it were permissible to publish a plaint containing (say) charges of fraud against some respectable man before he could even put in his answer, and long before the charges could be judicially determined.
I may refer to one more case, not because it lays down any new law, but because it brings the English authorities up-to-date and illustrates the restrictions imposed there on the liberty of the press, which, as pointed out by Lord Russell in Reg. vs. Gray 1900, 2 Q. B. 36 at p. 40, is on these matters "no greater and no less than the liberty of every subject of the king". The case is Reg. vs. Empire News Limited as is reported in the London Times of 20th January 1920, and was heard by Lord Chief Justice of England and Mr. Justice Avory and Mr. Justice Sankey. There the newspaper had commented on a pending murder case, but did not attempt to justify its action in so doing, and the proprietors and editor expressed their deepest regret and contrition to the Court. In delivering judgment, the Earl of Reading said:
"The Court could not permit the investigation of murder to be taken out of the hands of the proper authorities and to be carried on by newspapers. The liberty of the individual even when he was suspected of crime and indeed even more so when he was charged with crimes, must be protected, and it was the function of the Court to prevent the publication of articles which were likely to cause prejudice. The only doubt in the case was whether the Court ought to commit the editor to prison. The Court had come to the conclusion that in the circumstances it must mark its sense of the offence committed, which was an offence both by the proprietors and editor, by imposing a fine of £ 1000."


Application to Present Caw

The principles of law then being clear, how ought they to be applied to the facts of this particular case? In my opinion, those principles prohibited Publication of the District judge's letter pending the hearing of the notices issued by the Bombay High Court. It was contended by the respondent Gandhi that the letter was written by Mr. Kennedy in his private capacity, and not as District Judge. I think that contention is erroneous. The letter is an official letter written by the District Judge in the exercise of his duties as such and submitting the case to the High Court for orders. As my Brother Hayward has pointed out to me, the letter follows the procedure laid down in the Civil Circulars of this Court, in cases of alleged misconduct by a pleader (see p. 259). It very properly sets out what the learned Judge considers to be the facts, both for and against the pleaders, and gives his reasons for bringing the matter before the High Court. Indeed, if he had not done so, he would presumably have been asked by the High Court for further particulars before they took any action. The letter is on lines quite familiar to this Court in other cases, where the Sessions Judge, in the exercise of his duties as such, brings some matter before this Court with a view to the exercise of its exceptional powers.
I may instance criminal references where the Sessions Judge for the reasons given in his special letter recommends the revision of some illegal or inadequate sentence which has been passed by a subordinate Court and which the High Court alone can alter in certain contingencies. If, in the present case, the District Judge's letter contained any statements which the respondent pleaders or barristers contended were inaccurate, that would be a matter for decision at the hearing of the notices, when all they had to say would be fully considered. But even if the letter was written by Mr. Kennedy in his private capacity, I do not think it would make any substantial difference as regards mere publication. The letter would still form part and a most important part of the pending proceedings and the record thereon, and I do not think that any substantial difference can be drawn between it and the other classes of documents mentioned in the authorities cited in Oswald and in Halsbury to which I have already referred. In my judgment, therefore, the publication of this letter was a Contempt of Court.
That brings me to the comments made in the newspaper, including the heading "O'Dwyerism in Ahmedabad" under which the letter was published. These comments are not only comments on pending proceedings, but are of a particularly intemperate and reprehensible character. They prejudge the case and tend to undermine any decision which the High Court may come to at the trial. They also amount in my opinion to what Lord Russell describes as "scurrilous abuse of the Judge as such". In this latter connection, the question whether the letter was written by Mr. Kennedy in his private or in his judicial capacity become immaterial, but as I have already stated it was in my judgment written in his judicial capacity.
Accordingly, on the authorities I have already referred to, these comments are clearly Contempt of Court and come within both the classes to which Lord Russell refers and in my judgment they constitute a serious Contempt of Court.


"No Public Duty"

We have carefully considered the various statements made by the respondents and invited them at hearing to give any intelligible explanation or excuse for their conduct. None such was forthcoming. In his letter of the 11th December, 1919, the respondent Gandhi contends that in publishing and commenting on the letter he performed a useful public duty at a time when there was a great tension and when even the judiciary was being affected by the popular prejudice. Commonsense would answer that if that tension and popular prejudice existed, it would be increased rather than diminished by abuse of the Local Judge and that this could not be the public duty of any good citizen.
But there would seem to be some strange misconception in the minds of the respondents as to the legitimate liberties of a journalist. Otherwise the respondent Gandhi could hardly have contended before us, as he in fact did, that if a son brought a suit against a father and if a journalist thought that the son's action was wrong, the journalist would be justified in holding the son up to public ridicule in the public press, notwithstanding that the suit was still undecided. I need hardly say that this contention is erroneous. It may however be, that principles which are quite familiar in England are imperfectly known or understood in India, and that the respondents have paid more attention to the liberty of the press than to the duties which accompany that and every other liberty. This has much weighed with me in considering what order the Court ought to pass in this case.
We have large powers and in appropriate cases can commit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right; but just as our powers are large so ought we, I think, to use them with discretion and with moderation, remembering that the only object we have in view is to enforce the due administration of justice for popular benefit.
In the present case the Court has very seriously considered whether it ought not to impose a substantial fine on one if not both of the respondents, but on the whole, I think it is sufficient for the Court to state the law in terms which I hope will leave no room for doubt in the future, and to confine our order to severely reprimanding the respondents and warning them both as to their future conduct.


The Order of the Court

That accordingly is the order which I think we should pass in the present case.
The order of the Court will accordingly be: "The Court finds the charges proved. It severely reprimands the respondents and cautions them both as to their future conduct."


Mr. Haywad's Judgment

Mr. Justice Hayward in a separate but concurrent judgment, after discussing the legal aspect of the case, made the following observations:
"It is difficult to appreciate the position taken up by the respondents. They have expressed their inability to apologize formally but have at the same time represented their readiness to submit to any punishment meted out to them. It is possible that the editor, the respondent Gandhi, did not realize that he was breaking the law and there would be no doubt if that were so, that it was not realized by his publisher, the respondent Desai. The respondents seem to have posed not as law breakers but rather as passive resisters of the law. It would therefore be sufficient in my opinion to enunciate unmistakably for them the law in these matters, to severely reprimand them for their proceedings and to warn them of the penalties imposable by the Right Court."
Mr. Justice Kajiji concurred.

Young India, 24-3-1920, pp. 7-8