R.K. ANAND v. REGISTRAR, DELHI HIGH COURT

EXCHANGE BETWEEN KULKARNI & DEEPAK VERMA: - c Kulkarni: Humming some tune Kulkarni: Don't go to car directly. We'll take an auto Deepak Verma: Take an auto? D Kulkarni: Haan. Thoda sa aage cha/en ge Kulkarni: Aap ne suna nahin? "Bade Saheb se mile ya nahin?" Deepak Verma: Haan E Kulkarni: Ab dekho ka/ you will get [unclear..] you what you want Deepak Verma: Kai aap Bade Saheb se milne ja rahe hain? " F Kulkani: Na, Haan unke ghar pe. No, you don't have to come. You just come and stay outside. Theek hai na? {unclear ... ] Haan ab to aap ke samne hua sab kucchh G Deepak Verma: Bade Saheb woh hai, Anand? Kulkarni: Hmm. Noise of some auto/heavy vehicle engine

H Deepak Verma: [Unclear .. .] Ek baar iska Photograph

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1139 [AFTAB ALAM, J.]

le in .... /ska photograph aaya ki nahin A aaya? ... Kulkarni: Aaya. Aaya, aaya. Kulkarni: Pukka trail hoga hamara. Hundred percent Tail hoga. B Deepak Verma: Police Waale ko kaise kah raha tha who? Gaadi Dilwao

yaar..

124Copy pinpoint124. From the manner of speaking Kulkarni appeared to be giving the impression that everything went off according to the plan. He also tended to be slightly melodramatic. (He would not go to the car directly because they were bound to be followed!)

125Copy pinpoint125. Now, while examining what Kulkarni understood or rather what he wanted Deepak Verma to believe what was meant by 'Bade Saheb' it is necessary to bear in mind that the whole object of the sting was to uncover the alleged unholy alliance between the defence and the prosecution. It was based on the premise that the prosecution was colluding with the defence in the effort to save the accused in the BMW case. In that situation for Kulkarni, who for his own reasons was anxious to get NDTV's help for doing the sting, it was natural to find out and show to Deepak Verma some link between IU Khan and RK Anand irrespective of whether or not there was, in reality, any link between the two. There is no way to find out whether Kulkarni really believed that by 'Bade Saheb' IU Khan meant RK Anand (Like everything else even on this issue he changed his stand from time to time!) or he just wanted Deepak Verma to believe so. But even if Kulkarni really understood Bade Saheb to mean RK Anand, that would not change the position much. For our purpose it is not impor:tant what Kulkarni or H

1140 SUPREME COURT REPORTS (2009] 11 S.C.R.

A Deepak Verma or any one else understood (truthfully or otherwise!) by that expression. One may use an expression to mean a certain thing but to the listener it may mean something quite different. What is important here is to judge what IU Khan meant when he used that expression. In our view, on the basis - B of the exchange between Kulkarni and Oeepak Verma, it will be highly unsafe to hold that when IU Khan asked Kulkarni whether he had met "Bade Saheb' he meant RK Anand.

126Copy pinpoint126. The High Court rejected IU Khan's explanation that what he meant by 'Bade Saheb' was some senior officer in the C police headquarter. According to IU Khan, Kulkarni was in the habit of directly approaching the superior police officers and he would refer to them by that expression. In support of the plea in his reply affidavit (paragraph 12) IU Khan stated as follows:

o· "Even during the course of his deposition in court Mr. S. Kulkarni had used the expression "Bade Sahab" while referring to the higher police officers. The Ld. trial court also translated the same in English while recording the statement as "higher police officers". In the cross- E examination Mr. S. Kulkarni has stated "I had voluntarily gone to the higher police officers of the police headquarter"".

The High Court rejected the aforesaid plea observing as follows; F "It was further submitted that during the recording of Mr. Kulkarni's evidence on an earlier occasion, a reference to Bade Saheb was made more than once. "Bade Saheb" was then translated and recorded in the deposition to mean G senior police officers. Learned counsel for Mr. Khan, however, did not produce any material to support the last submission".

(emphasis added)

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1141 [AFTAB ALAM, J.]

127Copy pinpoint127. Mr. P. P. Rao submitted thatthe approach of the High A Court was quite unfair. The proceeding before the High Court was not in the nature of a suit or a criminal trial. In response to the notice issued by the Court the appellant had made a positive statement in his reply affidavit. The statement was not formally traversed by anyone. There was, therefore, no reason for the B appellant to assume that he would be required to produce evidence in support of the statement. In case the High Court felt the need for some evidence in support of the averment it should have at least made it known to the appellant. But the High Court without giving any inkling to the appellant rejected c the plea in the final judgment. The appellant was thus clearly denied a proper opportunity to defend himself. We find that the submission is not without substance. The proceeding before the High Court was under the Contempt of Courts Act and the High Court was not following any well known and well established format. In that situation it was only fair to give notice to the proceedees to substantiate the pleas taken in the reply affidavit by leading proper evidence. It must, therefore be held that the High Court rejected a material plea raised on behalf of the IU Khan without giving him any opportunity to substantiate it.

128Copy pinpoint128. Further, as noticed above, the High Court, for arriving at the finding that there was a high degree of familiarity among IU Khan, Kulkarni and RK Anand has repeatedly used the transcripts of the meetings between Kulkarni and RK Anand. It F is indeed true that in the exchanges between Kulkarni and RK Anand there are many references to IU Khan. That may give rise of ,a strong suspicion, of a common connection between the three. But having regard to the charge of criminal contempt any suspicion howsoever strong cannot take the place of proof G and we don't feel it wholly prudent to rely upon the exchanges between Kulkarni and RK Anand to record a finding against IU Khan.

129Copy pinpoint129. Further, according to the High Court, the essence of H

1142 SUPREME COURT REPORTS [2009] 11 S.C.R.

A culpability of IU Khan was his omission to inform the prosecution and the Court "that one of its witnesses was more than an acquaintance of defence lawyer".

130Copy pinpoint130. Mr. P. P. Rao submitted that the High Court convicted the appellant for something in regard to which he was never 8 given an opportunity to defend himself. From the notice issued by the High Court it was impossible to discern that the charge of criminal contempt would be eventually fastened on him for his failure to inform the court and the prosecution about the way Kulkarni's was being manipulated by the defence. Mr. Rao C further submitted that the reason assigned by the Court to hold the appellant guilty was based purely on assu~ption. The appellant was given no opportunity to show that, as a matter of fact, after Kulkarni met him at the Patiala House on April 28, 2007 he had informed the concerned authorities that after being D summoned by the court Kulkarni was back to his old tricks. He further submitted that the appellant, given the opportunity, could also show that the decision to not examine him as one of the prosecution witnesses was taken by the concerned authorities in consultation with him. We find substance in Mr. Rao's E submission.

131Copy pinpoint131. In our considered view, on the basis of materials on record the charge of criminal contempt cannot be held to be satisfactorily established against IU Khan. In our opinion he is F entitled to the benefit of doubt.

PROCEDURE FOLLOWED BY THE HIGH COURT:

132Copy pinpoint132. A lot has been argued about the procedure followed by the High Court in dealing with the matter. On behalf of RK G Anand it was strongly contended that by only asking for the copies of the original sting recordings and allowing the original microchips and the magnetic tapes to be retained in the custody of NDTV the High Court committed a serious and fatal lapse. Mr. Gopal Subramanium also took the view that though the final judgment passed by the High Court was faultless, it was

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1143 [AFTAB ~LAM, J.]

nevertheless an error on its part to leave the original sting recordings in the safe custody of the TV channel. On principle and as a matter of proper procedure, the Court, at the first instance, ought to have taken in its custody all the original electronic materials concerning the stings. B

133Copy pinpoint133. At first the direction of the High Court leaving the microchips containing the original sting recordings and the magnetic tapes with the TV channel indeed appears to be somewhat strange and uncommon but a moment's thought would show the rationale behind it. If the recordings on the microchips were fake from the start or if the microchips ·were morphed before notice was issued to the TV channel, those would come to the court in that condition and in that case the question whether the microchips were genuine or fake/morphed would be another issue. But once the High Court obtained their copies there was no possibility of any tampering with the microchips from that stage. Moreover, the High Court might have felt that the TV channel with its well equipped studio/ laboratory would be a much better place for the handling and conservation of such electronic articles than the High Court Registry. On the facts of the case, therefore, there was no lapse on the part of the High Court in leaving the microchips in the safe custody of the TV channel and in any event it does not have any bearing on the final decision of the case.

134Copy pinpoint134. However, what we find completely inexplicable is why, at least at the beginning of the proceeding, the High Court did not put NDTV, along with the two appellants, in the array of contemnors. Looking back at the matter (now that we have on the record before us tt)e appellants' affidavits in reply to the notice issued by the High Court as well as their first response to the telecast in the form of their live interviews), we are in the position to say that since the contents of the sting recordings were admitted there was no need for the proof of integrity and correctness of the electronic materials. But at the time the High Court issued notices to the two appellants (and two others) the H

1144 SUPREME COURT REPORTS [2009] 11 S.C.R.

A position was completely different. At that stage the issue of integrity, authenticity and reliability of the sting recordings was wide open. The appellants might have taken the stand that not only the sting recordings but their respective responses shown by the TV channel were fake and doctored. In such an event B the TV channel would have been required to be subjected to the strictest proof of the electronic materials on which its programmes were based and, in case it failed to establish their genuineness and correctness, it would have been equally guilty, if not more, of serious contempt of court and other criminal c offences. By all reckoning, at the time of initiation of the proceeding, the place of NDTV was along with the appellants facing the charge of contempt. Such a course would have put the proceeding on a more even keel and given it a more balanced appearance. Then perhaps there would have been no scope for the grievance that the High Court put the TV 0 channel on the complainant's seat. And then perhaps the TV Channel too would have conducted itself in a more careful manner and the lapses as indicated above in the case of IU Khan might not have occurred.

E THE PUNISHMENT: PROHIBITION AGAINST APPEARING IN COURTS •

135Copy pinpoint135. We were also addressed on the validity of the High Court's direction prohibiting the two appellants from appearing before the High Court and the courts subordinate to it for a period of four months. Though by the time the appeals were taken up for hearing the period of four months was over, Mr. Altaf Ahmed contended that the High Court's direction was beyond its competence and authority. In a proceeding of contempt punishment could only be awarded as provided under the Contempt of Courts Act, though in a given case the High Court could debar the contemnor from appearing in court till he purged himself of the contempt. He further submitted that professional misconduct is a subject specifically dealt with under the Advocates Act and the authority to take action against H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1145 [AFTAB ALAM, J.]

a lawyer for any professional misconduct vests exclusively in the State Bar Council, where he may be enrolled, and the Bar Council of India. The Counsel further submitted that a High Court could frame rules under section 34 of the Advocates Act laying down the conditions subject to which an advocate would be permitted to practise in the High Court and the courts subordinate to it and such rules may contain a provision that an advocate convicted of contempt of court would be barred from appearing before it or before the subordinate courts for a specified period. But so far the Delhi High Court has not framed any rules under section 34 of the Act. According to him, c therefore, the punishment awarded to the appellant by the High Court had no legal sanction. .... 136. Mr. Nageshwar Rao learned Senior Advocate assisting the Court as amicus shared the same view. Mr. Rao submitted that the direction given by the High Court was beyond its jurisdiction. In a proceeding of contempt the High Court could only impose a punishment as provided under section 12 of the Contempt of Courts Act, 1971. The High Court was bound by the provisions of the Contempt of Courts Act and it was not open to it to innovate any new kind of punishment in exercise of its powers under Article 215 of the Constitution or its inherent powers. Mr. Rao submitted that a person who is a law graduate becomes entitled to practise the profession of law on the basis of his enrolment with any of the State Bar Councils established under the Advocates Act, 1961. Appearance in Court is the dominant, if not the sole content of a lawyer's practice. Since, the authority to grant licence to a law graduate to practise as an advocate vests exclusively in a State Bar Council, the power to revoke the licence or to suspend it for a specified term also vests in the same body. Further, the revocation or suspension of licence of an advocate has not only civil but also penal consequences; hence, the relevant statutory provisions in regard to imposition of punishment must be strictly followed. Punishment by way of suspension of the licence of an advocate can only be imposed by the Bar Council, the competent statutory H

1146 SUPREME COURT REPORTS [2009] 11 S.C.R.

A body, after the charge is established against the advocate concerned in the manner prescribed by the Act and the Rules framed thereunder. The High Court can, of course, prohibit an ,' advocate convicted of contempt from appearing before it or any court subordinate to it till the contemnor purged himself of the B contempt. But it cannot assume the authority and the power statutorily vested in the Bar Council.

137Copy pinpoint137. Mr. Gopal Subramanium the other amicus, however, approached the issue in a slightly different manner and took the middle ground. Mr. Subramanium submitted that the power ,. c to suspend the licence of a lawyer for a reason that may constitute contempt of court and at the same time may also

D amount to professional misconduct is a power to be exercised by the disciplinary authority i.e. the Disciplinary Committee of the State Bar Council where the concerned advocate is registered or the Bar Council of India. The Supreme Court has - held that even it, in exercise of its powers under Article 142, cannot override statutory provisions and, assuming the position of the Disciplinary Committee, suspend the licence of a lawyer. Such a course cannot be followed even by taking recourse to E the appellate powers of the Supreme Court under section 38 of the Advocates Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). But approaching the matter from a different angle Mr. Subramanium submitted, it is, however, open to the High Court F to make rules regulating the appearance of advocates in courts. He further submitted that although the Delhi High Court has not framed any specific rules regulating the appearance of advocates, it is settled law that power vested in an authority would not cease to exist merely because rules prescribing the G manner of exercise of power have not been framed.

138Copy pinpoint138. The contention that the direction debarring a lawyer from appearing before it or in courts subordinate to it is beyond the jurisdiction of the High Court is based on the premise that the bar is akin to revocation/suspension of the lawyer's licence H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1147 [AFTAB ALAM, J.] > which is a punishment for professional misconduct that can only be inflicted by the Bar Council after following the procedure prescribed under the Advocates Act. The contention finds support from the Constitution Bench decision of this Court in Supreme Court Bar Association vs. Union of India, (1998) 4 SSC 409. In paragraph 37 of the decision the Court observed and held as under:

i "37.The .nature and types of punishment which a court of record can impose in a case of established contempt under the common law have now been specifically incorporated in the Contempt of Courts Act, 1971 insofar c as the High Courts are concerned and therefore to the extent the Contempt of Courts Act, 1971 identifies the '' nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 D either. No new type of punishment can be created or assumed."

In paragraphs 39 & 40 it observed: E "39. Suspending the licence to practise of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose on F a contemnor in addition to any of the other recognised punishments."

"40. The suspension of an advocate from practise and his removal from the State roll of advocates are both G punishments specifically provided for under the Advocates ~ Act, 1961, for proven "professional misconduct" of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of contempt of court. There is no H

1148 SUPREME COURT REPORTS [2009] 11 S.C.R.

A cause of professional misconduct, properly so called, .. pending before the Court. This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the Disciplinary Committee of the Bar Council of the State or the Bar Council of India to punish B an advocate by suspending his licence, which punishment can only be imposed after a finding of "professional misconduct" is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder."

In Paragraph 57 it observed: c

57. In a given case, an advocate found guilty of committing

D contempt of court may also be guilty of committing "professional misconduct", depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by - different forums by following separate and distinct procedures. The power to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional E misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts."

Again in paragraph 80 it observed: F "80. In a given case it may be possible for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his G licence or debarring him to practise as an advocate. In a case of contemptuous, co:itumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under the Supreme Court Rules, itself, to withdraw his privilege to practice as an H Advocate-on-Record because that privilege is conferred

R.K. ANAND v. REGISTRAR. DELHI HIGH COURT 1149

[AFTAB ALAM, J.]

by this Court and the power to grant the privilege includes A the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals." B

139Copy pinpoint139. The matter, however, did not stop at Supreme Court Bar Association. In Pravin C Shah vs. K. A. Mohd. Ali and Another, (2001) 8 SCC 650, this Court considered the case of a lawyer who was found guilty of contempt of court and as a consequence was sought to be debarred from appearing in courts till he purged himself of contempt. Kerala High Court has framed Rules under section 34 of the Advocates Act and rule 11 reads thus:

"No advocate who has been found guilty of contempt of court shall be permitted to appear, act or plead in any court unless he has purged himself of the contempt."

140Copy pinpoint140. An Advocate, notwithstanding his conviction for contempt of Court by the Kerala High Court continued to freely appear before the courts. A complaint was made to the Kerala E State Bar Council on which a disciplinary proceeding was initiated against the advocate concerned and finally the State Bar Council imposed a punishment on him debarring him from acting or pleading in any court till he got himself purged of the contempt of court by an order of the appropriate court. The concerned advocate challenged the order of the State Bar F Council in appeal before the Bar Council of India. The Bar Council of India allowed the appeal and set aside the interdict imposed on the advocate. The matter was brought in appeal before this Court and a two judges' Bench hearing the appeal framed the question arising for consideration as follows: G

"When an advocate was punished for contempt of court can he appear thereafter as a counsel in the courts, unless he purges himself of such contempt? If he cannot, then what is the way he can purge himself of such contempt?" H

1150 SUPREME COURT REPORTS [2009] 11 S.C.R.

A The Court answered the question in paragraphs 27, 28 and 31 of the judgment as follows:

"27. We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the B contempt, particularly in a case where the contemnor is convicted of criminal contempt. The danger in giving accord to the said view of the learned Single Judge in the aforesaid decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit c contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt."

D "28. The Disciplinary Committee of the Bar Council of India highlighted the absence of any mode of purging oneself of the guilt in any of the Rules as a reason for not following the interdict contained in Rule 11. Merely because the Rules did not prescribe the mode of purging oneself of the guilt it does not mean that one cannot purge the guilt at all. The first thing to be done in that direction when a contemnor is found guilty of a criminal contempt is to implant or infuse in his own mind real remorse about his conduct which the court found to have amounted to contempt of court. Next step is to seek pardon from the court concerned for what he did on the ground that he really and genuinely repented and that he has resolved not to commit any such act in future. It is not enough that he tenders an apology. The apology tendered should impress the court to be genuine and sincere. If the court, on being impressed of his genuineness, accepts the apology then it could be said the contemnor has purged himself of the guilt."

"31. Thus a mere statement made by a contemnor before court that he apologises is hardly enough to amount to

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1151 ·[AFTAB ALAM, J.]

purging himself of the contempt. The court must be satisfied of the genuineness of the apology. If the court is so satisfied and on its basis accepts the apology as genuine the court has to make an order holding that the contemnor has purged himself of the contempt. Till such an order is passed by the court the delinquent advocate would continue to be under the spell of the interdict contained in Rule 11 of the Rules."

141Copy pinpoint141. More importantly, another Constitution Bench of this Court in Ex. Capt. Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45, examined the question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In paragraph 34 of the decision the Court made highly illuminating observations in regard to lawyers' right to appear before the Court and sounded the note of caution for the lawyers. Para 34 of the decision need to be reproduced below: D

"34 .. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming ; conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be H

1152 SUPREME COURT REPORTS [2009] 11 S.C.R.

A concerning the dignity and orderly functioning of the .. courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal B opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for his clients before an arbitrator or arbitrators etc. Such a rule woul~ have nothing to do with all the acts done c by an advocate during his practice. He may even file vakalat on behalf of a client event though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court D c::ould also be regulated by them in exarcise of their disciplinary powers. The right to practise, no doubt, Is genus of which the right to appeal and conduct cases in the court may be a specie. But the right to appear and condutt cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings H inside the courts are always expected to be held in

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1153 [AFTAB ALAM, J.]

dignified and orderly manner. The very sight of an A advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The B power to frame such rules should not be confuse~ with the right to practice law. While the Bar council can exercise control over the latter, the courts are in control of the former. The distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act c on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empower the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set D out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts E to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practice in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in c; Court to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in a court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act H

1154 SUPREME COURT REPORTS [2009] 11 S.C.R.

A on the one hand and Section 34 or Article 145 Constitutio'n of Indian on the other."

(emphasis added)

142Copy pinpoint142. In both Pravin C. Shah and Ex. Capt. Harish Uppal B the earlier Constitution Bench decision was extensively considered. The decision in Ex. Capt. Harish Uppal was later followed in a three judge Bench decision in Bar Council of India vs. The High Court of Kera/a, (2004) 6 SCC 311.

c 143. In Supreme Court Bar Association the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him.*ln Ex. Capt. Harish Uppal it was seen not as punishment for professional misconduct but as a measure 0 necessary to regulate the court's proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing E in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an • F advocate is found tampering with the court's record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an 'inconvenient' court; or where an advocate is found to be in the habit of sending unfounded

Though in Paragraph 80 of the decision, as seen earlier thre is an observatin that in a given case it might be possible for this cout or the High Court to prevent the contemnor advocate to appear before it till he purge himself of the contempt.

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1155 [AFTAB ALAM, J.]

and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor's conduct and actions may pose a B real and imminent threat to the purity of court proceedings, cardinal to any court's functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time. It is already ' explained in Ex. Captain Harish Uppal that a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the concerned lawyer to carry on his legal practice in other ways as indicated in the decision.

144Copy pinpoint144. We respectfully submit that the decision in Ex-Capt. E Harish Uppal vs. Union of India places the issue in correct perspective and must be followed to answer the question at issue before us,

145Copy pinpoint145. Lest we are misunderstood it needs to be made clear that the occasion to take recourse to the extreme step of deparring an advocate from appearing in court should arise very rarely and only as a measure of last resort in cases where the wrong doer advocate does not at all appear to be genuinely contrite and remorseful for his act/conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong act(s).

146Copy pinpoint146. Ideally every High Court should have rules framed under section 34 of the Advocates Act in order to meet with such eventualities but even in the absence of the Rule the High H

1156 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Court cannot be held to be helpless against such threats. In a matter as fundamental and grave as preserving the purity of judicial proceedings, the High Court would be free to exercise the powers vested in it under section 34 of the Advocates Act notwithstanding the fact that Rules prescribing the manner of exercise of power have not been framed. But in the absence of statutory Rules providing for such a course an advocate facing the charge of contempt would normally think of only the punishments specified under section 12 of the Contempt of Courts Act He may not even imagine that at the end of the proceeding he might end up being debarred from appearing before the court. The rules of natural justice, therefore, demand that before passing an order debarring an advocate from appearing in courts he must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period. The 0 warning may be given in the initial notice of contempt issued under section 14 or section 17 (as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceedee is held guilty of criminal contempt before dealing with the question of punishment. E

147Copy pinpoint147. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts • F shall frame the rules within four months from today. The High Courts may also consider framing rules for having Advocates on Record on the pattern of the Supreme Court of India. Suborning a witness in a criminal trial is an act striking at the root of the judicial proceeding and it surely deserves the treatment meted out to the appellant. But the appellants were not given any notice by the High Court that if found guilty they might be prohibited from appearing in the High Court, and the • courts subordinate to it, for a certain period. To that extent the direction given by the High Court was not in conformity with the principles of natural justice. But as to the consequence of that

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1157 [AFTAB ALAM, J.]

we shall deal with in due course. A

THE QUESTION OF SENTENCE:

148Copy pinpoint148. Having regard to the misdeeds of which RK Anand has been found guilty, the punishment given to him by the High Court can only be regarded as nominal. We feel that the B leniency shown by the High Court in meting out the punishment was quite misplaced. And the view is greatly reinforced if one looks at the contemnor's conduct before the High Court. As we shall see presently, before the High Court the contemnor took a defiant stand and constantly tried to obstruct the proceedings. c THE DIVERSIONARY & INTIMIDATORY TACTICS IN THE PROCEEDING:

149Copy pinpoint149. Even as contempt notices were issued by the High D Court, or even before it, some diversionary and even intimidatory tactics were employed to stonewall the proceeding initiated by it.

Kulkarni's Affidavit: E

150Copy pinpoint150. The first in the series was ·an affidavit filed on August 6, 2007 by Kulkarni in regard to the stings done by him. The affidavit was not called for by the Court and it was filed quite ... gratuitously. It was a jumble of non-sense, half truths and lies . Kulkarni made all conceivable and even some inconceivable allegations against NDTV in general and Poonam Agarwal in particular. He stated that Poonam Agarwal had recorded his first interview on April 25, 2003 and thereafter on several other dates till the last one in the last week of May before the telecast. It is not clear on whose behalf Poonam Agarwal would take his earlier interviews because she had joined NDTV only two years , prior to July 2007. He then alleged that Poonam Agarwal subjected him to "Gobel's technique" (sic. Goebbels's) to make him 'illicit' (sic. elicit) certain answers 'to' (sic. from) RK Anand and JU Khan in a particular manner. What is of significance in Kulkarni's affidavit, however, is that it anticipated what in the H

1158 SUPREME,COURT REPORTS [2009] 11 S.C.R.

A sting recordings might prove fatal for RK Anand and IU Khan and tried to do the ground work for their defence. In regard to his meeting with IU Khan, Kulkarni said that he met and spoke to him in the manner directed by Poonam Agarwal. He further said on affidavit that when IU Khan asked him if he had met B 'Bade Saheb' he implied some senior police official but it was Poonam Agarwal who forced him to say that :u Khan referred to RK A,1and. Now, this is exactly what IU Khan said in his interview to the TV channel and what he would say later in his show cause to the High Court. He also said that as agreed c between the two in the meeting of April 28, 2007, he again met IU Khan in the evening but the conversation that took place in that meeting expo.>ed NDTV story and, therefore, that recording was withheld from being telecast.

151Copy pinpoint151. Similarly, in regard to his meeting with RK Anand, D Kulkarni said that he met him on being forced by Poonam Agarwal. He fu1iher said on affidavit that he had mentioned the sum of rupees two and half crores to RK Anand on the direction of Poonam Agarwal. He himself had neither any idea nor the intention to ask him for any money. He further said that on the E mention of the sum of money RK Anand was shocked and he rebuked him by making the sarcastic remark that he should ask for five crores and not only two and half crores. He said that he got the message that no demand for money would be entertained. The similarity between what Kulkarni said in his • F affidavit and what RK Anand had to say about this matter and the manner in which he would say it is unmistakable. We are unable to believe that the manner in which Kulkarni's affidavit fore-shadows the proceedees defence was simply coincidental. It does not require much imagination to see that G Kulkarni had once again switched over sides and he had joined hands with those whom he had earlier tried to trap in the stings.

152Copy pinpoint152. In one of the paragraphs of the affidavit there is a ludicrous description of his meeting with Lovely. It is stated that despite persistent request by him for a meeting there was no H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1159 [AFTAB ALAM, J.] .. positive response from RK Anand. Then, "suddenly a Sardar A Ji came and started talking with me. In his pocket I saw some flash light beeping which alerted me thcit I was trap~d. I was ·· upset and wanted to convey all the facts to Hor.'ble Court but Ms. Poonam Agarwal prevciiled over me and dissuaded me to do the same". Even this apparently absurd story was not without B purpose; its object was to provide for the existence of another recording, apart from his own sting, of his meeting with Lovely.

153Copy pinpoint153. The recording, by Lovely, of their meeting was the second diversionary attempt in the proceeding before the High C Court.

Another audio recording of the meeting between Kulkarni & Lovely: ·

154Copy pinpoint154. The High Court registry received an audio cassette D along with a letter from one Su nil Garg. In the letter it was stated that the cassette _had the recording of some conversation between Lovely and Kulkarni. The cassette proved to be completely blank. Then on notice being issued to him Garg appeared in Court and made a statement on oath. He said that E Kulbir Singh alias Lovely was his friend. Shortly before his death he had come to him and handed over to hi,n;I to two audio cassettes saying that those contained the recordings of his conversation with Kulkarni. He had earlier sent one of the two cassettes without playing it on the recorder. He later came to learn from the newspaper reports the cassette was blank. He F then played the other cassette and found it had the recording. of some conversation between his friend Lovely and someone else. He recognised the voice of his friend Lovely. He submitted the other cassette in the High Court. G

155Copy pinpoint155. We would have completely ignored Kulkarni's affidavit and Garg's audio cassettes as foolish and desperate attempts to create some defence, not worthy of any attention. But there is something more to come that is impossible to ignore. H

1160 SUPREME COURT REPORTS [2009) 11 S.C.R.

A "REQUEST" FOR RECUSAL:

156Copy pinpoint156. Of all the obstructive measures adopted before the High Court the most unfortunate and undesirable came from RK Anand in the form of a petition 'requesting' Manmohan 8 Sarin J., the presiding judge on the bench dealing with the matter, to recuse him from the proceeding. This petition, an ill concealed attempt at intimidation, was, as a matter of faot, RK Anand's first response to the notice issued to him by the Court. He stated in this petition that he hao the feeling that he was not likely to get justice at the hands of Manmohan Sarin J. He further stated alluding to some past events, that he had tried his best to forget the past and bury the hatchet but the way and the manner in which the matter was being dealt with had caused the greatest damage to his reputation. He made the prayer that the recusal application should be heard in camera and the main matter be transferred to another bench of which Sarin J. was not a member. Along with th8 petition he filed a sealed cover containing a note and the materials giving rise to the belief that he was not likely to get justice at the hands of Sarin J.

157Copy pinpoint157. The recusal petition was primarily based on the plea that he had reasonable apprehension of bias, for Sarin J. was personally hostile to him. The self perceived hostility between the applicant (RK Anand) and Sarin J. dated back to 1984 when he was still a lawyer. They had a quarrel then that had led to F an exchange of verbal abuses. In 1988 Sarin J. (still a lawyer), in his position as the Vice President of the Delhi High Court Bar Association, had moved a resolution before the Association's executive committee opposing any proposal for the applicant's nomination for appointment as a judge of the G Del]li High Court. Sarin J., as a lawyer, had among his clients, the magazine, 'India Today' (Living Media) and the owners of NDTV were closely associated with 'India Today'. Sarin J., as an advocate had done the cases of the applicant's brothers whom he had referred to him. It was stated that the judge, thus, might have been privy to some family gossip causing him to

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1161 [AFTAB ALAM, J.]

pig prejµdicial!y gisposed towards the applicant. The applicant hm:l fli'lrlier §ent 13 G9rnplaint to the Prime Minister against the law Minister, who wµs one of his (applicant's) political rival. In the complaint, apart from the Law Minister, allegations were also made against the thi:m Chief Justice of the High Court. And in that connection it was alleged that the Chief Justice hi:iq 9round B him a coterie of Judges that included Sarin J. On the arrest of a sitting judge of the Delhi High Court by the CBI the media had gone to Sarin J. for his comments and even this, it was stated, might lead him to harbour ill will against the applicant. In a civil case for damages arising from the BMW case the matter was settled between the parties (one of the victims of the accident on the one side and the family of the accused Sanjeev Nanda on the other). But Sarin J. who was a member of the bench "· before which the matter came up for recording the settlement, did not allow it to be said in the compromise petition that the accident was caused by a truck and not by any car, It showed, according to the applicant, that Sarin J. had some pre" conceived notion that the accident was caused by the car driven by Sanjeev Nanda. The bench had appointed as amicus curiae a lawyer personally hostile to the applicant. And lastly the applicant had moved the Chief Justice on the administrative side to assign the matter to some other bench.

158Copy pinpoint158. In one glance, the grounds on which recusal was asked for appear fit to be rejected out of hands. But the court gave the matter far greater importance than it merited, apparently because it saw a personal angle in it. The petition was heard for three days before it was rejected by the order dated October 4, 2007. It is a long order running into twenty seven pages authored by Sarin J. The order dealt with all the grounds advanced in support of the recusal petition and effectively showed that there was no truth or substance in any of those grounds. In regard to the 1988 resolution of the Bar Association allegedly passed against RK Anand at the instance of Mr. Sarin the Court called for the Association's Register of Resolutions for the years 1988 and 1989. From the H

1162 SUPREME COURT REPORTS (2009] 11 S.C.R.

A Association's Register it transpired that at the relevant time Mr. Sarin was not an office bearer of the Association but was simply a member of its Executive Committee. Further, there was no resolution concerning RK Anand. A resolution of the nature stated in the recusal application was passed against someone B from the Judicial Service. It is true that one Mr. Tufail, the Joint Secretary of the Association had wished to move a resolution against RK Anand too and was given the permission to do so by the Executive Committee. But he did not actually move any • resolution and later said that he did not have necessar}i proof c in support of the allegations and the matter was dropped. As regards the complaint to the Prime Minister in which Sarin J. was said to be a member of the alleged coterie around the Chief Justice, Sarin J. commented that until a copy of the complaint .A

was filed with the recusal application he was not even aware of it. Having thus dealt with the rest of the allegations made in the recusal application, the order, towards its end, said something which alone was su,ficient to reject the request for recusal. It was pointed out that the applicant had a flourishing practice; he had been frequently appearing in the court of Sarin J. ever since he was appointed as a judge and for the past twelve years was getting orders, both favourable and unfavourable, for his different clients. He never complained of any unfair treatment by Sarin J. but recalled his old 'hostility' with the judge only after the notice was issued to him. ' F In the order the concerned judge further observed:

"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of tl,e Constitution G of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties • of office without fear or favour affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1163 [AFTAB ALAM, J.]

l to be made with a view of forum hunting I Bench A preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."

159Copy pinpoint159. The above passage, in our view, correctly sums up 8 what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an 'inconvenient' judge or to obfuscate the issues or ' to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice. We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the judge concerned but what is far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed E • ordinarily as interference in the due course of justice leading to penal consequences.

160Copy pinpoint160. The other Judge on the bench, however, it seems was unable to bear the onslaught and he took the easy way out. He F expressed his inability to concur with the order passed by presiding judge observing that "the nature of the controversy before us pertains to my learned brother alone. It revolves around a number of factual assertions, which can only be known to my learned brother personally, and which must necessarily be examined in the light of the law on the subject. Therefore, I G consider it inappropriate to express any opinion in the matter, one wc.y or the other." Having passed the brief separate order he declined to take any further part in the proceeding.

161Copy pinpoint161. This development provided RK Anand with another H

1164 SUPREME COURT REPORTS [2009] 11 S.C.R.

A opportunity to carry on his offensive further. He unhesitatingly availed of the opportunity and filed an application (Crl. M. 11677/2007) for clarification/review of the order dated October 4, 2007 dismissing his recusal petition. Review was sought primarily on the ground that the order of Sarin J. was not the order by the bench since the other judge had declined to concur with him. After the other judge opted out of the bench, the Chief Justice put Lokur J. in his place. Consequently, the clarification/ review application came before Sarin J., sitting with Lokur J., and the first thing this bench was told, and with some assertiveness too, was that it was not competent to hear the application and it could only be heard by the previous bench as it arose from an order passed by that bench.

162Copy pinpoint162. The clarification/review application was rejected by a long order dated November 29, 2007 authored by Lokur J. D As we shall see, henceforth all substantive orders in the proceeding were written, not by the presiding judge, but by Lokur J. and the significance of it is not lost on us. The application for recusal though rejected was not completely unsuccessful. It left a lasting shadow on the proceeding. E

163Copy pinpoint163. Here, it may be noted that apart from filing an application for its clarification/review before the High Court, the order rejecting the recusal application was also sought to be challenged before this Court by filing SLP (Cr!) No. 7374 of

F 2007. The SLP was, however, withdrawn on December 14,

2007. Nevertheless, the challenge to the High Court order rejecting the recusal application is still not given up and paragraphs H & I of the Grounds in the present Memo of appeal expressly seek to assail that order.

164Copy pinpoint164. Both Mr. Salve and l\ftr. Subramanium strongly submitted that the appellant had plainly no respect for the court or the court proceedings. Mr. Salve submitted that the recusal application was a brazen attempt to browbeat the High Court and in that attempt the appellant succeeded to a large extent since the prohibition to appear before the courts for a period

~.K. ANAND v. Rl=GISTRAR, DE:LHI HIGH COURT 1165 [AFTAB ALAM, ~.]

of only four months could only be considered as a token punishment having regard to the gravity of his conduct. Mr. Subramanium also felt strongly about the recusal application but before taking up the issue he fairly tried to give another opportunity to the appellant stating that perhaps even now the appellant might wish to withdraw the grounds in the SLP. B challenging the order passed by the High Court on the recusal application. lhe appellant was given ample time to consider the suggestion but later on enquiry Mr. Altaf Ahmed stated that • he had not pressed those grounds in course of his submissions exercising his discretion as the Counsel but he had no · c Instructions to get those grounds deleted from the SLP.

165Copy pinpoint165. lhe action of the appellant in trying to suborn the court witness in a criminal trial was reprehensible enough but his conduct before the High Court aggravates the matter manifold. He does not show any remorse for his gross misdemeanour D and instead tries to take on the High Court by defying its authority. We are in agreement with Mr. Salve and Mr. Subrarnanium that punishment given to him by the High Court was wholly inadequate and incommensurate to the seriousness of his actions and conduct. We, accordingly, propose to issue E a notice to him for enhancement of punishment. We also hold that by his actions and conduct the appellant has established himself as a person who needs to be kept away from the portals of the court for a longer time. The notice would therefore require him to show-cause why the punishment awarded to him should not be enhanced as provided under section 12 of the Contempt of Courts Act. He would additionally show-cause why he should not be debarred from appearing in courts for a longer period. The second part of the notice would also cure the defect in the High Court order in debarring the appellant from appearing in courts without giving any specific notice in that regard as held in the earlier part of the judgment.

166Copy pinpoint166. We have so far been considering the two appeals proper. We now proceed to examine some other important H

1166 SUPREME COURT REPORTS [2009] 11 S.C.R.

A issues arising from the case.

THE ROLE OF NDTV:

167Copy pinpoint167. NDTV came under heavy attack from practically all sides for carrying out the stings and airing the programme B based on it. On behalf of RK Anand the sting programme was called malicious and motivated, aimed at defaming him personally. Mr. P P Rao appearing for IU Khan questioned the propriety of the stings and the repeated telecast of the sting • programme concerning a pending trial and involving a court c witness. Mr. Rao ~ubmitted that before taking up the sting operations, fraught with highly sinister implications, the TV channel should have informtd the trial court and obtained its permission. If for any reason it W?.s not possible to inform the trial judge then permission for the stings should have been taken from the Chief Justice of the Delhi High Court. Also, it was the duty of that TV channel to place the sting materials before the court before telecasting any programme on that basis.

168Copy pinpoint168. Mr. Gopal Subramanium submitted that this r:ase raised the important issue regarding the nature and extent of the right of the media to deal with a pending trial. He submitted that a sting operation was, by its nature, based on deception and hence, overriding public interest alone might justify its publication/telecast. Further, since the operation was based on deception the onus would be heavy on the person behind the sting and publication/telecast of the sting materials to establish his/her bona fide, apart from the genuineness and truthfulness of the sting materials. In regard to sting operations bona fide could not be assumed. In this case, therefore, it was the duty of the High Court to inquire into and satisfy itself whether the sting operation was a genuine exercise by the TV channel to expose the attempted subversion of the trial. He further submitted that the affidavit of Poonam Agarwal was not sufficient to arrive at the conclusion that the action of the TV H channel was genuine and bona fide and the matter required

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1167 "' ) [AFTAB ALAM, J.] .i further enquiry. Mr. Subramanium further submitted that the act A of publication/telecast and the contents of publication/telecast, though interlinked, were still needed to be viewed separately and whether or not a publication or telecast was justified would, to a large extent, depend, as much on the contents of the publication/telecast, as the act of publication/telecast itself. He B further submitted that, in the facts of the case, the sting operation was in public interest and there was nothing objectionable there. But the same cannot be said of the telecast. The date on which the programme was telecast (May 30, 2007- when Kulkarni's cross-examination was still pending), the "slant" c given to the episode by the NDTV presenters, and the way opinions were solicited from eminent lawyers, left much to be explained by the TV channel. Learned Counsel submitted that a question may arise whether NDTV was justified in telecasting the programme based on the sting when they:·were not in a D ..\ position to vouch for Kulkarni's character. He, however, ' submitted that the TV channel must at least be given credit for transparency - it made a public disclosure, in the same telecast, that (a) Kulkarni had withdrawn his consent for the telecast; (b) it did not know if any money had in fact changed E hands, and (c) it could not vouch for Kulkarni's character. It also gave the contemnors a chance to state their version of the story. In conclusion Mr Subramanium submitted that it would be difficult to conclude that NDTV was guilty of contempt or of conducting a media trial although the "slant in the telecast was regrettable overreach." F

169Copy pinpoint169. The other amicus Mr. N. Rao was more severe in his criticism of the telecast of the sting programme by NDTV. He maintained that NDTV was equally guilty of contempt of court, though under a different provision of law. Mr. Rao submitted G that the programme was an instance of, what is commonly .. called, 'trial by medic:i' and it was telecast while the criminal trial was going on. He submitted that in our system of law there was no place for triai by r.1edia in a sub-judice matter. Mr. Rao submitted tnal freedom of speech and expression, subject of H

1168 SUPREME COURT REPORTS [2009] 11 S.C.R.

A course to reasonable restrictions, was indeed one of the most important rights guaranteed by the Constitution of India. But the press or the electronic media did not enjoy any right(s) superior to an individual citizen. Further, the right of free and fair trial was of far greater importance and in case of any conflict between B fr~ speech and fair trial the latter must always get precedence. Mr. Rao submitted that though the law normally did not permit any pre-censorship of a media report concerning an ongoing criminal trial or sub-judice matter, any person publishing the report in contravention of the provisions of law would certainly c make himself liable to the proceeding of contempt. Mr. Rao further submitted that the immunity provided under section 3 (3) of the Contempt of Courts Act was not available to the TV channel in terms of proviso (ii) Explanation (B) to sub-section (3) and thus the telecast of the sting programme by NDTV 0 clearly fell in the prohibited zone under the Act. He further submitted that in such an event, a plea of 'larger public good' was not a legal defence. In support of his submission he cited several decisions of this court in (i) Saibal Kumar Gupta and Others vs. B.K.Sen and Another., 1961 3 SCR 460 (473) (ii) E In Re: P. C. Sen, 1969 2 SCR 649 (651,653,654,658) (iii) Reliance Petrochemcials Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd., (1988) 4 SCC 592 pr. 32,34,95,38 (iv) M. P. Lohia vs. State of W B., (2005) 2 sec 686 pr. 10.

170Copy pinpoint170. Mr. Salve learned Senior Advocate appearing for NDTV, on the other hand, defended the telecast of the programme. Mr. Salve submitted that commenting on or exposing something foul concerning proceedings pending in courts would not constitute contempt if the court is satisfied that G the report/comment is substantially accurate, it is bona fide and it is in public interest. He referred to the new section 13 in the Contempt of Courts Act substituted with effect from March 17, 2006 which is as under:

"13. Notwithstanding anything contained in any law for the H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1169 [AFTAB ALAM, J.] ~~ time being in force,- A

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the B due course of justice;

(b) the court may permit, in any proceeding for ' contempt of court, justification by truth as a valid defence it it is satisfied that it is in public interest and the request for invoking the said defence is c bona fide."

(emphasis added)

171Copy pinpoint171. Mr. Salve submitted that in a situation of this kind two competing public interests are likely to arise; one, purity of trial and the other public reporting of something concerning the conduct of a trial (that may even have the tendency to impinge on the proceedings) where the trial, for any reason, can be considered as a matter of public concern. With regard to the case in hand Mr. Salve submitted that in the sting programmes there was nothing to influence the outcome of the BMW trial. But even if the telecast had any potential to influence the trial proceedings that risk was far outweighed by the public good . served by the programme. He further submitted that in a case where two important considerations arise, vying with each other, the court is the final arbiter to judge whether or not the publication or telecast is in larger public interest; how far, if at all, it interferes or tends to interfere with or obstructs or tends to obstruct the course of justice and on which side the balance tilts. In support of his submission he relied upon a decision of the House of Lords in Re Lonrho pie and others, [1989] 2 All ER 1100 paragraphs 7.2 and 7.3 at 1116.

172Copy pinpoint172. We have already dealt with the allegations made on behalf of RK Anand while considering his appeal earlier in this H

1170 SUPREME COURT REPORTS [2009] 11 S.C.R.

A judgment and we find no substance in those allegations.

Reporting of pending trial:

173Copy pinpoint173. We are also unable to agree with the submission made by Mr. P. P. Rao that the TV channel should have carried out the stings only after obtaining the permission of the trial court or the Chief Justice of the Delhi High Court and should have submitted the sting materials to the court before its telecast. Such a course would not be an exercise in journalism but in that case the media would be acting as some sort of special vigilance agency for the court. On little consideration the idea appears to be quite repugnant both from the points of view of the court and the media. It would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for o the court. Moreover, to insist that a report concerning a pending trial may be published or a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to pre-censorship of reporting of co'urt proceedings. And this would be plainly an infraction of the E media's right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. This is, however, not to say that media is free to publish any kind of report concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in any manner they please. The legal parameter _. F within which a report or comment on a sub-Judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences. Compared to normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting is based on deception and, therefore, it would attract the legal restrictions with far greater G stringency and any infraction would invite more severe punishment.

Sting programme whether trial by media??

174Copy pinpoint174. The submissions of Mr. N. Rao are based on two

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1171 [AFTAB ALAM, J.] l premises: one, the sting programme telecast by NDTV was of the genre, 'trial by media' and two, the programme interfered or tended to interfere with or obstructed or tended to obstruct the proceedings of the BMW trial that was going on at the time of the telecast. If the two premises are correct then the rest of the submissions would logically follow. But are the two premises correct? What is trial by media? The expression 'trial by media' is defined 'to mean:

"the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scruti~" · .

175Copy pinpoint175. In light of the above it can hardly be said that the sting programme telecast by NDTV was a media trial. Leaving aside some stray remarks or comments by the anchors or the interviewees, the programme showed some people trying to subvert the BMW trial and the state of the criminal administration of justice in the country (as perceived by the TV channel and the interviewees). There was nothing in the programme to suggest that the accused in the BMW case were guilty or innocent. The programme was not about the accused but it was mainly about two lawyers representing the two sides and one of the witnesses in the case. It indeed made serious allegations against the two lawyers. The allegations, insofar as G RK Anand is concerned, stand established after strict scrutiny by the High Court and this Court. Insofar as IU Khan is concerned, though this Court held that his conduct did not constitute criminal contempt of court, nonetheless allegations against him too are established to the extent that his conduct H

1172 SUPREME COURT REPORTS (2009] 11 S.C.R.

l A has been found to be inappropriate for a Special Prosecutor. In regard to the witness the comments and remarks made in the telecast were never subject to a judicial scrutiny but those too are broadly in conformity with the materials on the court's record. We are thus clearly of the view that the sting programme B telecast by NDTV cannot be described as a piece of trial by media.

Stings & telecast of sting programmes not constituting criminal contempt:

c 176. Coming now to section 3 of the Contempt of Courts Act we are unable to appreciate Mr. Rao's submission that NDTV did not have the immunity under sub-section (3) of section 3 as the telecast was hit by proviso (ii) Explanation (B) to that sub section. Section 3 of the Act insofar as relevant is as under:

"3. Innocent publication and distribution of matter not contempt.- (1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.

(2) xxx

(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1 ), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid: H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1173 [AFTAB ALAM, J.]

Provided that this sub-section shall not apply in respect of A the distribution of-

(i) any publication which is a book or paper printed or published otherwise than in conformity with tre rules contained in section 3 of the Press and Registration 8 of Books Act, 1867 (25 of 1867);

(ii) any publication which is a newspaper published otherwise than in conformity with the rules contained in section 5 of the said Act. c Explanantion.- For the purposes of this section, a judicial proceeding-

(a) is said to be pending-

(A) xxx D

(B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898 ( 5 of 1898), or any other law-

(i) where it relates to the commission of an offence, when E the charge-sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused, and

(ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates, and xxx F

(b) xxxx"

177Copy pinpoint177. Section 5 provides that a fair criticism of a judicial act concerning any case which has been heard and finally decided would not constitute contempt. G

_, 178. Sub-section (1) of section 3 provides immunity to a publisher of any matter which interferes or tends to interfere with, or obstructs or tends to obstruct the course of justice in any civil or criminal proceeding if he reasonably believed that there was H

1174 SUPREME COURT REPORTS [2009] 11 S.C.R.

A no proceeding pending. A sub-section (3) deal with distribution of the publication as mentioned in sub-section (1) and provides immunity to the distributor if he reasonably believed that the publication did not contain any matter which interfered or tended to interfere with, or obstructed or tended to obstruct the course B of justice in any civil or criminal proceeding. The immunity provided under sub-section (3) is subject to the exceptions as stated in the proviso and explanations to the sub-section. We fail to see any application of section 3(3) of the Contempt of Courts Act in the facts of this case. In this case there is no c distribution of any publication made under sub-section (1 ). Hence, neither sub-section (3) nor its proviso or explanation is attracted. NDTV did the sting, prepared a programme on the basis of the sting materials and telecast it at a time when it fully knew that the BMW trial was going on. Hence, if the programme is held to be a matter which interfered or tended to interfere 0 with, or obstructed or tended to obstruct the due course of the BMW case then the immunity under sub-section (1) will not be available to it and the telecast would clearly constitute criminal contempt within the meaning of section 2 (c) (ii) & (iii) of the Act. But can the programme be accused of interfering or E tending to interfere with, or obstructing or tending to obstruct the due course of the BMW case. Whichever way we look at the programme we are not able to come to that conclusion. The programme may have any other faults or weaknesses but it certainly did not interfere with or obstruct the due course of the F BMW trial. The programme telecast by NDTV showed to the people (the courts not excluded) that a conspiracy was afoot to undermine the BMW trial. What was shown was proved to be substantially true and accurate. The programme was thus clearly intended to prevent the attempt to interfere with or G obstruct the due course of the BMW trial.

STINGS & TELECAST OF STING PROGRAMMES SERVED IMPORTANT PUBLIC CAUSE

179Copy pinpoint179. Looking at the matter from a slightly different angle H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1175 [AFTAB ALAM, J.] we ask the simple question, what would have been in greater public interest; to allow the attempt to suborn a witness, with the object to undermine a criminal trial, lie quietly behind the veil of secrecy or to bring out the mischief in full public gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed in larger public interest and it se~d an important public cause.

180Copy pinpoint180. We have held that the sting programme telecast by NDTV in no way interfered with or obstructed the due course of any judicial proceeding, rather it was intended to prevent the attempt to interfere with or obstruct the due course of law in the BMW trial. We have also held that the sting programme telecast by NDTV served an important public cause. In view of the twin findings we need not go into the larger question canvassed by Mr Salve that even if the programme marginally tended to influence the proceedings in the BMW trial the larger public interest served by it was so important that the little risk should not be allowed to stand in its way.

Excesses in the telecast:

181Copy pinpoint181. We have unequivocally upheld the basic legitimacy of the stings and the sting programmes telecast by NDTV_ But at the same time we must also point out the deficiencies (or rather the excesses) in the telecast. Mr. Subramanium spoke about the 'slant in the telecast as 'regrettable overreach'. But we find many instances in the programme that cannot be simply described as 'slants'. There are a number of statements and remarks which are actually incorrect and misleading. In the first sting programme telecast on May 30, 2007 at 8.00 pm the anchor made the opening remarks as under: , G "Good Evening,. ... an NDTV expose, on how the legal -{ system may have been subverted in the high profile BMW case. In 1999 six people were run over allegedly by a BMW driven by Sanjeev Nanda a young, rich industrialist but 8 years later every witness except one has turned hostile. H

1176 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Tonight NDTV investigates did the prosecution, the defence and the only witness not turned hostile Sunil Kulkarni collude ... "

182Copy pinpoint182. The anchor's remarks were apparently from a prepared text since the same remarks were repeated word by B word by another anchor as introduction to the second telecast on the same day at 9:00 pm.

183Copy pinpoint183. Further, in the 9 o'clock telecast after some brief introductory remarks, clips from the sting recordings are shown c for several minutes and a commentator from the background (probably Poonam Agarwal) introduces the main characters in the BMW case. Kulkarni is introduced by the commentator in the following words:

D "Sunil Kulkarni, a passerby, who allegedly saw the accident but inexplicably dropped as witness by prosecution. They claim he had been bought by the Nandas. This despite the fact that he is the only witness who still says the accident was caused by a 'black car' with two men in it one of them called Sanjeev." E

184Copy pinpoint184. [This statement does not find place in the manuscript of the telecast furnished to the court and can be found only by carefully watching the CD of the telecast submitted before the court. We are again left with the feeling that NDTV did not submit full and complete materials before the court and we are surprised that the High Court did not find it amiss]

185Copy pinpoint185. In the first statement Kulkarni is twice described as the only witness in the BMW case who after eight years had not turned hostile. The statement is fallacious and misleading. Kulkarni was not being examined in the court as prosecution witness and, therefore, there was no question of his being ~ declared 'hostile' by the prosecution. He was being examined as a Court witnesses. Nevertheless, the prosecution was cross- examining him in detail in course of which he was trying to H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1177 [AFTAB ALAM, J.]

sabotage the prosecution case. A

186Copy pinpoint186. The second statement is equally, if not more, fallacious. In the second statement it is said that Kulkarni was 'inexplicably' dropped as a prosecution witness. We have seen earlier that Kulkarni was dropped as a prosecution witness for 8 good reasons summed up in the Joint Commissioner's report to the trial court and there was nothing 'inexplicable' about it. In the second statement it is further suggested that the prosecution's claim that Kulkarni was bought over by the accused was untrue because he was the only witness who still C said that the accident was caused by a black car with two men in it, one of them being called Sanjeev. It is true that in his deposition before the court Kulkarni said that the accident was caused by a black car but he resiled from his earlier statements made before the police and the magistrate in a more subtle and clever way than the other two prosecution witnesses, _namely, D Hari Shankar Yadav and Manoj Malik. Departing from his earlier statements he said in the court that he heard one of the two occupants of the car addressing the other as 'Sanch or sanz' (and not as Sanjeev). Further, though admitting that Sanjeev Nanda was one of the occupants of the car, he positively denied that he got down from the driving seat of the car and placed someone else on the driving seat of the car causing the accident. Thus the damage to the prosecution case that he tried to cause was far more serious than any other prosecution witness. It is not that NDTV did not know these facts. NDTV was covering the BMW trial very closely since its beginning and was aware of all the developments taking place in the case. Then why did it introduce the programme in this way, running down . the prosecution and presenting Kulkarni as the only person standing upright while everyone else had fallen down? The G answer is not far to seek. One can not start a highly sensational programme by saying that it was prepared with the active help of someone whose own credibility is extremely suspect. The opening remarks were thus designed to catch the viewer and . to hold his/her attention, but truth, for the moment at least was H

1178 SUPREME COURT REPORTS [2009] 11 S.C.R.

A relegated to the sidelines. It is indeed true that later on in the programme facts concerning Kulkarni were stated correctly and he was presented in a more balanced way and Mr. Subramanium wanted to give NDTV credit points for that. But the impact and value of the opening remarks in a TV B programme is quite different from what comes later on. The later corrections were for the sake of the record while the introductory remarks had their own value.

187Copy pinpoint187. Further, on the basis of the sting recordings NDTV C might have justifiably said that IU Khan, the Special Prosecutor appeared to be colluding with the defence (though this court found that there was no conclusive evidence to come to such a finding). But there was no material before NDTV to make such allegation against the prosecution as a whole and thus to run down the other agencies and people connected with the prosecution. There are other instances also of wrong and inappropriate choice of words and expressions but we need not go any further in the matter.

188Copy pinpoint188. Another sad feature is its stridency. It is understandable that the programme should have started on a highly sensational note because what was about to be shown ' was really quite shocking. But the programme never regained poise and it became more and more shrill. All the interviewees, highly eminent people, expressed their shock and dismay over the state of the legal system in the country and the way the BMW trial was proceeding. But as the interview progressed, they somewhat tended to lose their self restraint and did not pause to ponder that they were speaking about a sub-judice matter and a trial in which the testimony of a court witness was not even over. We are left with the feeling that some of the speakers allowed their passions, roused by witnessing the shocking scenes on the TV screen, to get better of their judgment and made certain very general and broad remarks about the country's legal system that they might not have made if speaking in a more dispassionate and objective

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1179 [AFTAB ALAM, J.] . circumstances. Unfortunately, not .a single constructive suggestion came from anyone as to how tr revamp the administration of criminal justice. The programme began on negative note and remained so till the very end.

Conduct of NDTV in proceeding before High Court: B

189Copy pinpoint189. In the earlier part of the judgment some of the glaring lapses committed by NDTV i"n the proceeding before the High Court are already recounted. Apart from those one or two other issues need to be mentioned here that failed to catch the attention of the High Court. It seems that at the time the sting operations were carried out people were actually apprehensive of something of that kind. Vikas Arora, Advocate had stated in his complaint (dated April 19, 2007) about receiving such a threat from Poonam Agarwal. NDTV in its reply dated April 26, 2007 had denied the allegations in the complaint, at the same time, declaring its resolve to make continuous efforts to unravel the truth. At the same time Poonam Agarwal was planning the stings in her meetings with Kulkarni. As a matter of fact, the first . sting was carried out on IU Khan just two days after giving reply to Arora's complaint. Further, from the transcript of the first sting carried out on RK Anand on May 6, 2007 it appears that he too had expressed some apprehension of this kind to which Kulkarni responded by saying that he did not have money enough to eat how could he do any recording of anyone. (It is difficult to miss the irony that the exchange took place while RK F Anand was actually being subjected to the sting). It thus appears that at that time, for some reason, the smell of sting was in the air. In those circumstances we find it strange that in the affidavits filed on behalf of NDTV there should be absolutely no reference to Vikas Arora's complaint. In the earlier part of G the judgment we have examined the affidavits filed by Poonam _, Agarwal and found that she states about all the aspects of the sting operations in great detail. But surpri::-ingly those affidavits do not even refer to, much less deal with the complaint of Vikas Arora despite the striking similarity between the threat that was H

1180 SUPREME COURT REPORTS (2009) 11 S.C.R.

A allegedly given to him and his senior IU Khan and the way the sting operation was actually carried out on IU Khan.

190Copy pinpoint190. There is another loose end in the whole matter. Kulkarni's sting meeting with IU Khan had ended with fixing up another meeting for the following Sunday at the latter's B residence. (It was the setting up of this meeting that is primarily the basis for holding him guilty of misconduct as the Special Public Prosecutor). One should have thought that this meeting would surely'take place because it provided a far better opportunity for the sting. With 'good Scotch whisky' flowing it c was likely that the planners of the stings would get more substantial evidences of what they suspected. But we are not told anything about this meeting: whether it took place or not? If it took place what transpired in it and whether any sting recording was done? If it did not take place what was the reason for not keeping the appointment and giving up such a good - opportunity. Here it may be noted that Kulkarni also in his affidavit filed before the High Court on August 6, 2007 stated that as arranged between them he again met IU Khan in the evening but the sting recording of that meeting was withheld by NDTV because that falsified their story. Kulkarni, as was his wont, might be telling lies but that was an additional reason for NDTV to clarify the issue regarding the second meeting between the two.

, 191. The next meeting between Kulkarni and IU Khan that was fixed up in the sting meeting on April 28, 2007 might or might not have taken place but there can be little doubt that they met again between April 28, 2007 and May 31, 2007 (the day following the first sting telecast) when Kulkarni gave IU Khan the 'certificate' that he had accepted the summons on his advice (which was submitted by IU Khan before the trial court when he withdrew from thP. case).

192Copy pinpoint192. The affidavits filed on behalf of NDTV are completely silent on these aspects. H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1181 [AFTAB l4:LAM, J.]

193Copy pinpoint193. These omissions (and some similar others) on the A part of NDTV leave one with the feeling that it was not ,sharing all the facts within its knowledge with the court. Tha disclosures before the Court do not appear to be completely open, full and frank. It would tell the court only so much as was necessary to secure the conviction of the proceedees-wrong doers. There B were some things that it would rather hold back from the court. We would have appreciated the TV channel to make a fuller • disclosure before the High Court of all the facts within its knowledge.

194Copy pinpoint194. Having said all this we would say, in the end, that for c all its faults the stings and the telecast of the sting programme by NDTV rendered valuable service to the important public cause to protect and salvage the purity of the course of justice. We appreciate the professional initiative and courage shown ,. by the young reporter Poonam Agarwal and we are impressed by the painstaking investigation undertaken by NDTV. to uncover the Shimla connection between Kulkarni and RK Anand.

195Copy pinpoint195. We have recounted above the acts of omission and commission by NDTV before the High Court and in the telecast of the sting programme in the hope that the observations will help NDTV and other TV channels in their future operations and programmes. We are conscious that the privately run TV channels in this country are very young, no more than eighteen or twenty years old. We also find that like almost every other sphere of human activity in the country the electronic news media has a very broad spectrum ranging from very good to unspeakably bad.

196Copy pinpoint196. The better news channels in the country (NDTV being one of them) are second to none in the world in matters of coverage of news, impartiality and objectivity in reporting, reach to the audience and capacity to influenc2 public opinion and are actually better than many foreign TV channels. But that is not to say that they are totally free from biases and prejudices H

1182 SUPREME COURT REPORTS [2009] 1"i S.C.R.

A or they do nor commit mistakes or gaffes or they some times do not tend to trivialise highly serious issues or that there is nothing wanting in their social content and orientation or that they maintain the same standards in all their programmes. In quest of excellence they have still a long way to go. B

197Copy pinpoint197. A private TV channel which is also a vast business venture has the inherent dilemma to reconcile its business interests with the higher standards of professionalism/demands of profession. The two may not always converge and then the TV channel would find its professional options getting limited C as a result of conflict of priorities. The media trips mostly on TRPs (television rating points), when commercial considerations assume dominance over higher standards of professionalism.

198Copy pinpoint198. It is not our intent here to lay down any reformist agenda for the media. Any attempt to control and regulate the media from outside is likely to cause more harm than good. The norms to regulate the media and to raise its professional standards must come from inside.

E ROLE OF THE LAWYER

199Copy pinpoint199. The other important issue thrown up by this case and that causes us both grave concern and dismay is the decline of ethical and professional standards among lawyers. The F conduct of the two appellants (one convicted of committing criminal contempt of court and the other found guilty of misconduct as Special Prosecutor), both of them lawyers of long standing, and designated Senior Advocates, should not be seen in isolation. The bitter truth is that the facts of the case are manifestation of the general erosion of the professional values among lawyers at all levels. We find today lawyers indulging in practices that would have appalled their predecessors in the profession barely two or three decades ago. Leaving aside the many kinds of unethical practices indulged in by a section of lawyers we find that even some highly

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1183 [AFTAB ALAM, J.] ;. successful lawyers seem to live by their own rules of conduct. A We have viewed with disbelief Senior Advocates freely taking part in TV debates or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject matter of cases pending before the court and in which they are appearing for one of the sides or taking up the brief of one of the sides B soon after the TV show. Such conduct reminds us of the fictional barrister Rumpole, 'the Old Hack of Bailey', who self • deprecatingly described himself as an 'old taxi plying for hire' . He at least was not bereft ot-p.rofesslcrnal values. When a young and enthusiastic journalist invited him to a drink of Dom c Perignon, vastly superior and far more expensive than his usual 'plank', 'Chateau Fleet Street', he joined him with alacrity but when in the course of the drink the journalist offered him a large sum of money for giving him a story on the case; 'why he was defending the most hated woman in England', Rumpole ended the meeting simply saying " "In the circumstance I think it is best if I pay for the Dom Perignon"

200Copy pinpoint200. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for ~ administration of justice in the country. No judicial system in a democratic society can work' satisfactorily unless it is supported by a bar that enjoys the unqualified trust and confidence of the people, that share the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people.

201Copy pinpoint201. We are glad to note that Mr. Gopal Subramanium, G the amicus fully shared our concern and realised the gravity of the issue. In course of his submissions he eloquently addressed us on the elevated position enjoyed by a lawyer in our system of justice and the responsibilities cast upon him in consequence. His Written Submissions begin with this issue H

1184 SUPREME COURT REPORTS [2009] 11 S.C.R.

A and he quotes extensively from the address of Shri M C Setalvad at the Diamond Jubilee Celebrations of the Banglore Bar Association, 1961, and from the decisions of this Court in Pritam Pal vs. High court of Madhya Pradesh, 1993 Supp (1) SCC 529 (observations of Ratnavel Pandian J.) and Sanjeev B Datta, In Re, (1995) 3 SCC 619 (observations of Sawant J. at pp 634-635, para 20).

202Copy pinpoint202. We respectfully endorse the views and sentiments expressed by Mr. M.C. Setalvad, Pandian J. and Sawant J.

203Copy pinpoint203. Here we must also observe that the Bar Council of India and the Bar Councils of the different states cannot escape their responsibility in this regard. Indeed the Bar council(s) have very positively taken up a number of important issues concerning the administration of justice in the country. It has o consistently fought to safeguard the interests of lawyers and it has done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers its performance hardly matches its achievements in other areas. It has not shown much concern E even to see that lawyers should observe the statutory norms prescribed by the Council itself. We hope and trust that the Council will at least now sit up and pay proper attention to the restoration of the high professional standards among lawyers worthy of their position in the judicial system and in the society.

F This takes us to the last leg of this matter.

THE LARGER ISSUE: BMW TRIAL GETTING OUT OF HAND:

204Copy pinpoint204. Before laying down the records of the case we must also advert to another issue of great importance that causes grave concern to this Court. At the root of this odious affair is the way the BMW trial was allowed to be constantly interfered with till it almost became directionless. We have noted Kulkarni's conduct in course of investigation and at the commencement of the trial; the fight that broke out in the court

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1185 [AFTAB ALAM, J.] .l premises between some policemen and a section of lawyers over his control and custody; the manner in which Hari Shankar Yadav, a key prosecution witness turned hostile in court; the curious way in which Manoj Malik, another key witness for the prosecution appeared before the court and overriding the prosecution's protest, was allowed to depose only to resile from his earlier statement. All this and several other similar developments calculated to derail the trial would not have ... escaped the notice of the Chief Justice or the judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious c activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.

205Copy pinpoint205. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High 0 Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. But unfortunately the reports would seldom, " if ever, be taken note of by the collective consciousness of the Court. The High Court would dontinue to carry on its business as if everything under it was proceeding normally and smoothly. The trial would fail because it was not protected from external interferences. Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the • criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people. Every failed trial is also, in a manner of speaking, a negative comment on the State's High Court that is entrusted H

1~86 SUPREME COURT REPORTS [2009] 11 S.C.R.

A with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more pro-active role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the B concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is c at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the 0 matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has got ample powers for all this both on the judici~J and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article G 235 of the Constitution that vests the High Court with the power of control over sub-ordinate courts should also include a positive element. It should not be confined only to posting, • transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to H protect them from external interference that may sometime