1. MUHAMMAD GUL, J,-Tbis appeal under sub-clause (c) of clause (2) of Article 185 of Constitution is from the judgment of a Division Bench of the Lahore High Court dated 17-12-1975.* By that judgment Messrs Hagam Quresbi, (zharul Haq and Riaz-ul-Hassan Gilani, the three appellants herein and Sh.
2. Shaukat Ali, all Advocates were found guilty of contempt of the High Court in that they along with certain other Advocates organized procession and paraded in the streets of Lahore on 27-9-1975 whence a number of placards with inscriptions tending to undermine the authority and dignity of the High Court were displayed and slogans of like tendency were shouted. The three appellants contested the proceedings but were found guilty and sentenced to for months' simple imprisonment and a fine of Rs. 1,000 each or two months' simple imprisonment in lieu of the fine.
3. They were also directed to pay Rs. 500 each as costs to Mr. M. Anwar, a Senior Advocate of this Court who appeared amicus curiae in the case. Sh. Shaukat Ali on the other band after initially contesting the proceedings, entered a plea of unqualified apology. The High Court accepted his apology and sentenced him to imprisonment till the rising of Court and fine of Rs. 1,000 or two months' simple imprisonment in lieu thereof. He was also directed to pay Rs. 500 as costs to Mr. M.
4. Anwar.
5. The appellants and Sh. Shaukat Ali are prominent members of the Lahore High Court Bar Association. The latter at the material time was President of the Lahore High Court Bar Association.
6. He, however, resigned his office during the pendency of the case in the High Court. Before that he had been a Judge of the West Pakistan High Court and later of the Lahore High Court but was removed from judgeship as Vi result of an enquiry by the Supreme Judicial Council following scrutiny of his assets under the Judges (Declaration of Assets) Order, 1969 (P. O. No. 4 of 1969). Mr. Hakam Qureshi, appellant No. I was and continues to be President of the Lahore .District Bar ASBOCIa--tion. Sh. Izharul Haq and Syed Riaz-ul-Hassan Gilani appellants 2 and 3 were respectively Secretary and Member, Executive Committee of the High Court Bar Association.
7. For a proper appreciation of allegations against the three appellants and of arguments addressed in the appeal, it is necessary to refer to certain facts, which formed the background of so unusual an event as .The taking out of a procession of Advocates in the streets of Lahore. Unfortunately since the removal of Sb. Shaukat Ali from the judgeship, there has been spate of contempt cases in the Lahore High Court in some of which he has been directly or indirectly concerned as contemnor.
8. There have been similar cases against him before this Court and Supreme Judicial Council as well.
9. Even the enquiry proceedings before the Supreme Judicial Council culminating in his removal from judgeship were marred by unpleasant incident, as would appear from the concluding paragraph of the report in the President v. Mr. Justice Shaukat AU (PLD1971SC585).
10. Indeed the instant vase is also an aftermath of two earlier contempt cases initiated respectively against him and Sh Izharul Haq in the High Court and registered as Criminal Original No. 58 of 1975 and Criminal Original No. 60 of 1975. The contempt case against Shaukat Ali was a sequel to a vile attack by him on the superior Judiciary, in the course of his address to the Rawalpindi Bar Association on 25-7-1975 on the basis of which Criminal Original No. 58 of 1975 was registered in the High Court. .Sometime, after the contempt notice to Sh. Shaukat Ali in that case, there appeared an advertise--ment in a number of newspapers under the caption "Lawyers Unite". The advertisement referred to a joint meeting of the High Court and the Lahore District Bar Associations, convened to consider the contempt notice issued to Sh. Shaukat Ali consequent upon his address to the Rawalpindi Bar and his version with regard thereto and stated that "it is clear that it does not amount to contempt. If it does, the members of the Bar assume responsibility... . The advertisement purported to be at the instance of Sh. Izharul Haq as the Secretary, High Court Bar Association. This was plainly public comment on a matter sub judice before the High Court, in Criminal Original No. 58 of 1975 and therefore, the High Court sun moto issued notices to Sh. Izharul Haq and the management of various newspapers in which the advertisement had appeared. That case was registered as Criminal Original No. 60 of 1975 and heard by a Full Bench on 23-9-1975. In that case Sh. 1zharul Haq was found guilty of contempt for the publica--tion of the advertisement and sentenced to six months' simple imprisonment and a fine of Rs. 2,000. He filed in this Court Criminal Appeal No. 46 of 1975 against his conviction. On the preliminary hearing, his sentence was suspended and he was released from jail on 27-9-1975. Apparently this was made an occasion for taking out procession of Advocates to glorify Sh: Izharul Haq whence a number of placards were displayed and offensive slogans shouted.
11. Information about the procession was lodged by the Advocate-General in the High Court. It was alleged that the procession was led by the three appellants and Sh. Shaukat Ali and the offensive placards displayed and slogans shouted. A number of photographs (Exbs. B-1 to B-6) were also annexed to the information showing prominently the three appellants and Sh. Shaukat Ali wearing garlands and a number of placards with the following inscriptions, namely:----
(7) Lawyers unite against corruption;
(8) Crush corruption; and. ;
(9) Shooting on our President condemned.
12. Appellant Hakam Qureshi also carried a megaphone and in one of the photographs is seen atop a motor vehicle (pick-up) seemingly addressing the processionists.
13. The appellants denied having shouted any slogans contemptuous of the High Court or the Judges.
14. They however, admitted having formed the procession and that some of the processionists carried placards with slogan against corruption, and other social evils and urging repeal of contempt laws.
15. A Division Bench hearing the case decided not to record evidence in proof of the alleged contemptuous slogans shouted by the appellants an proceeded to determine their guilt on the basis of their admissions Sh. Shaukat Ali entirely admitted the allegations against him and made the following statement on 6-11-1975; "I do not want to contest the proceedings. I am extremely sorry and tender unqualified apology. I have profound respect for this learned Court and place myself completely in its merciful hands."
16. This was supplemented by the further statement made on 25-11-1975 to the following effect; "I admit to have joined the procession carrying the placards, photographs (Exhs. B-1 to B-6). I also admit that this tantamounted to contempt of this Court. I have, therefore, tendered unqualified apology. As matter of fact the apology which I tendered on the very first day i. e. 6th of November 1975, also meant the same things."
17. The learned Judges after considering the matter generally against the back--ground of the events referred to above came to the conclusion that the procession and the inscriptions on the placards were "directed against the High Court". The learned Judges rejected the appellants' explanation that the inscriptions were directed against social evils and not against the High Court or the Judges.
18. Mr. Muhammad Ashraf Falahi, learned counsel for the appellants in his somewhat discursive but spirited argument contended that the three appellants have been found guilty by the High Court solely on the basis of confession by their co-respondent in the High Court, Sh. Shaukat Ali and that apart from that confession there was no evidence aliunde which could possibly bring home the charge of contempt against the three appellants. It was empha--sised that 5h. Sbaukat Ali for reasons of his own admitted the allegations against him which could not in law furnish a valid basis for a finding of guilty against the appellants and once that admission was excluded, there remains no legal evidence to sustain the appellants' conviction.
19. Mr. Falahi was also at pains to explain that Sh. Shaukat Ali's address to the Rawalpindi Bar on 25-7- 1975 and the lawyers procession on 27-9-1975 was in implementation of what he described as "the seven point programme" earlier adopted by the High Court Bar Association that the lawyers should unite to eradicate corruption especially in Courts and other social evils in all walks of life. According to learned counsel, it was in pursuit of the seven---point programme that Sh. Shaukat Ali as the President was given "mandate" by the High Court Bar Association to address various Bar Associations in the Province. This learned counsel said, was not only "lawful but laudable". Learned counsel therefore, stressed that the taking out of procession on 27-9-1975, and the inscriptions on the placards should be understood in that context and no sinister significance be attached to them. Learned counsel also underlined the fact that no offensive slogan is attributed to the appellants nor any of them carried any placard. Therefore too their conviction was unsustainable.
20. As to the first part of the argument, it is not right to suggest that the appellants' conviction rests on the confession of Sh. Shaukat Ali, in the High Court. The High Court considered the case of the appellants separately. The learned Judges were also impressed by the fact that m the photograph the three appellants and Sh. Shaukat Ali were all riding the motor vehicle and wearing garlands.
21. This singled them out from the rest of the processionists. Hakam Qureshi is seen holding the megaphone in one of the photographs seemingly addressing the processionists. The genuineness of these photographs was not contested: nor the correctness of the various inscriptions on the placards.
22. The question therefore, arises that if the procession was in the pursuance of the "seven-point programme" then why all these garlands and glorifi--cation of Sh. Izharul Haq in particular. Indeed it would be ridiculous to suggest that all this fuss was part of or incidental to the "seven-point programme". It was in these circumstances that the learned Judges, if I may say so with respect, aptly posed the question: for what wonderful service rendered to the legal profession or to the Bar Association Sh. Izharul Haq was being profusely garlanded was taken in procession? This unusual spectacle of C procession of lawyers starting from the District Courts with placards glorifying Sh.
23. Izharul Haq and terminating at the main gate of the High Court cannot be explained upon any reasonable hypothesis other than this that Iaharul Haq who had earlier been convicted by the High Court for contempt was on that day released on interim ball granted by this Court, and this was made an occasion to browbeat the High Court by slogan mongering in the streets of Lahore. This procession was all the more astonishing because the main appeal filed by Sh. Izharul Haq in this Court was still pending. Messrs Shaukat Ali and Riaz-ul-Hassan wore garlands and became heroes because they also figured as respondents in certain other contempt cases. Therefore, it would be travesty of fact to say that this procession of certain Advocates, parading the streets of Lahore on 27-9-1975 was in furtherance of the "seven-point programme" and bad nothing to do with the contempt cases then pending in the High Court or as the case may be in this Court.
24. The appellants' learned counsel next argued that all that is proved against the appellants is that they were among the processionists and wore garlands. But none of them carried any placard or proved to have shouted any slanderous slogans. It was stressed that even the inscription on the placards were innocuous and per se did not amount to contempt of Court. It was further submitted that the appellants were arranged for criminal contempt and therefore, in accordance with the principles governing the administration of criminal justice, the inscriptions should be understood in their natural meaning and no hidden or implied meaning should be given to them as done by the High Court.
25. It is true that an ordinary accused under the criminal law is presumed to be innocent and the ' entire burden is upon the accuser to establish his accusation. But it is not so in the case of proceedings for contempt of Court. As pointed out in the case of Saadat Khialy v. The State (PLD 1972 SC 39) proceedings for committal for contempt are sui generis in nature partaking of some of the elements of both civil and criminal proceedings, but really constitution neither, and that there is no fixed formula for contempt proceedings. The contemner is a competent witness on his own behalf and can file his affidavit in his defence. This an accused in a criminal case cannot do. This should be enough to demonstrate the difference between proceedings for committal for contempt and an ordinary criminal case. In the case Sir' Edward Snelson v. The Judges of the High Court of Pakistan (PLD 1961 SC 237) Cornelius, C: J. Disposed of somewhat similar argument by the following observation appearing at pp. 259-260,of the report: "In considering libellous matter, certain principles are followed by the Court. One is that matter which in its nature defamatory is presumed to be false until the contrary is shown to be the truth.
26. Another principle is that in construing the matter alleged to be defamatory, no mitigation of its natural meaning by construction is permissible. The words must be given their full, natural and ordinary meaning as a reasonable man of ordinary prudence would be likely to understand them.
27. They must be taken as a whole in their context and it should be clearly borne in mind that the slander and the damage consists in the apprehension of the hearer or other person to whom the libel is communicated. The meaning in which the words were intended by the author to be understood is immaterial. Again, words may be on the surface innocent but they may carry a secondary or special sense regard being had to the occasion, to the quality of persons to whom they are addressed, and to the circumstances affecting their meaning. In such a special sense they may have a disparaging effect even though on a plain reading no defamation appears.
28. Therefore, to avoid the imputation of disparagement it is clear that not only must the words in their natural and ordinary meaning be innocent, but there should be no secondary sense imported by circumstances which would bring them within the mischief of defamation."
29. I cannot improve upon the above statement. It was also a case of contempt by scandalization.
30. In the earlier part of judgment, I have said enough about the ambient circumstances and the immediate occasion for taking out of the procession. Viewed in that context, I have no doubt in my mind that the various inscriptions on the placards were an affront to the High Court and bad definite tendency to undermine the public confidence in the High Court. Besides Sh. Izharul Haq, the other two appellants and Sh. Shaukat Ali were profusely garlanded and occupied place of honour in the procession because the three at the relevant time were being arraigned for contempt of Court in separate proceedings and the fourth namely Hakam Qureshi was appearing as counsel for one of them and therefore joined the ranks of heroes among processionists. Against the background of the above facts, the inscriptions urging repeal of contempt law and seeking protection for Advocates from the operation of the law clearly tends to create an impression on the lay mind that the contempt law is tyrannic, and is administered tyrannically by the Judges to suppress and oppress Advocates in the performance of their professional duties. In the case of the King v. Dunbabin Ex parte Williams (63 C L R 434), the Australian High Court .Interpreted the newspaper article complained of all being likely to give the impression;---- "That the Court exercises its ingenuity in order to defeat legislation to which great public importance attatches and that the Federal Govern--ment encounters in the Court an obstacle it might well seek to remove."
31. The Australian High Court took the view that "such imputations however, well disguised, were likely to shake the confidence of the litigants and the public in the decisions of the Court and weaken the spirit of obedience to law. Therefore, the Court was bound to consider the publication as a serious contempt which it must repress."
32. Mr. Falahi learned counsel for the appellants, devoted a considerable part of his arguments to canvass the proposition that the law relating to contempt of Courts is nugatory to the precepts of Islam and must be struck down on that account. He referred to a brochure by appellant Riaz-ul--- Hassan in support of his argument. He also relied upon Articles 30 and 31 in Chapter 2 of Part II of the Constitution relating to Principles of Policy which all functionaries of the State are enjoined to observe. According to learned counsel law of contempt impinges upon the freedom of speech guaranteed by Article 19 of the Constitution and must therefore be struck down on that score also.
33. He earnestly pleaded for what he described "astivism" rather than "conservatism" in the interpretation of the above provisions of the Constitution. While on this part of his argument, learned counsel prayed for forbearance of the Court, for he had been a journalist before he became an Advocate, one may well sympathise with the idealism of learned Advocate, but his argument is wholly devoid of merit. About the brochure written by one of the appellants, learned a counsel ought to have known that in legal argument opinion of a living author is not cited and he should have known better that, where the author s a party to a legal proceedings as in the instant case, his opinion would' be an admission in his own favour which the Law of Evidence expressly makes irrelevant. As to the merit of the argument that law relating to contempt of Court is nugatory to Islamic precepts all I need say is that a similar plea was raised in this Court in the case of 4shfaque Ahmad Sheikh v. The State (PLD 1972SC39) but was found to be "fallacious".
34. About the argument based on Principles of Policy laid down in Chapter 2 of Part II of the Constitution, in view of the dictum in Ashfaque Ahmad's case, the argument is not available to learned counsel. Moreover the Principles themselves are not rules of law, their true position having been determined by Article 30 which inter alia provides that the "validity of an action or of a law shall not to be called in question on the ground that it is not in accordance with the Principles of Policy . " And then the freedom of speech guaranteed by Article 19, is subject to "any reasonable restriction imposed by law . . . . . In relation to contempt of Court . . . . ." The framers of the Constitution advisedly made the exception to "the freedom of speech". Or else it would seriously impede and interfere with the orderly administration of justice. The prohibition in Article 68 of the Constitution operating against the legislators who otherwise have complete freedom of speech in the Legislative Assemblies is also a pointed in the same direction. The Article is in negative terms and therefore is mandatory in its effect. It reads :---- "No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties."
35. This provision is not peculiar to the Constitution of Pakistan and as far as I am aware is part of the Constitutions of all civilized countries. The plain object is to prevent scandalisation of Courts and the Judges to enable them to administer justice unruffled and unaffected by any extraneous pressure. It is only then that the Judges of the superior Courts, conforming to the oath of office are enabled "to do right to all manner of people according to law without fear or favour . . . Monograph 27 at page 21 of Halsbury's Laws of England, Vol. IX, 4th Edn. Is a compendious statement of contempt by scandalising the Court and the philosophy underlying it :--- "Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court.
36. Thus scurrilous abuse of a Judge or Court, or attacks on the personal character of a Judge, are punishable contempts. The punishment is inflicted, not for the purpose of protecting either the Court as a whole or the individual Judges of the Court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court, from the mischief they will incur if the authority of the tribunal is under- -mined or impaired. In consequence, the Court has regarded with particular seriousness allegations of partiality or bias on the part of a Judge or a Court."
37. It would be instructive to point out that recently under the aegis of the International Commission of Jurists, a Sub-Committee under the Chairmanship of Lord Shawcross, P. C. Q. C. Was appointed to review the law relating to contempt of Courts in view of the criticism often levelled that the jurisdiction of Judges in dealing with contempt of Court is "practically arbitrary and unlimited." In the introductory part of the report under the caption "Fundamental Principles" it was observed; "We begin from the premise that it is essential to the maintenance, and indeed to the very existence, of the legal system of any State that its orders and to protect itself from abuse of itself or its procedure. We desire at the outset to make it clear that we recognise and accept this principle.
38. In our view any alteration or amendment of the law of contempt of Court must be such as will, without any doubt, leave to Court with sufficient powers for these purposes.
39. In particular, in the case of published matter prejudicing pending trials, we adhere strongly to the principle that trial should be by the Court alone, and that the life, liberty, reputation or property of the subject should not be unjustly imperiled by a so-called "trial by newspaper" which is said to occur in some States."
40. After contempt proceedings arising out of the advertisement "Lawyers Unite" which was in the nature of "trial by newspapers" the three appellants and Sh. Shaukat Ali were instrumental in taking the matter to the streets of Lahore. In so doing they have committed a grave wrong-in going to the extreme they did. If they think they have thereby enhanced the prestige of the Bar or rendered any service to the legal profession, they .Are sadly mistaken. And it is indeed a pity that they do not seem to have realized what they have done. Any disrespect to the Court is disrespect to the seat of justice: it is an affront to the majesty and dignity of law itself and not to the Judges who administer the law. Wilmot, C. J. In Rex v. Davies (Wilmot Opinions, p. 256) observed;--- "Attacks upon the Judges excite in the minds of people a general dissatisfaction with all judicial determinations . . . . . And whenever man's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls for a more rapid and immediate redress than any other obstruction whatsoever not for the sake of the Judges as private individuals but because they are the channels by which the King's Justice is conveyed to the people."
41. The object however, is not to idolise the Courts as mere objects of admiration or awesome reverence: rather it points out the place of Courts in the broad field of Government. There are two fundamental functions of Government in every State that hopes to survive. The first is to preserve the State and its citizens from external dangers. These dangers include war and threat of war which may be real or emotional but which is never far from our minds in these troublesome times.
42. The second fundamental function of every State is to preserve itself and the citizens from internal dangers ranging from simple assault to treason. It must prevent any undermining of the social order for which an efficient machinery for the proper settlement of disputes between the citizens is essential. In the process of preserving the State internally, Courts of justice play an important part.
43. They provide the forum for the trial of disputes between individuals and between State and individuals for the protection of human beings living in an organized society. Indeed for internal security of the State, the Courts of justice are its last bulwark. This explains why law so jealously guards the dignity of Courts and does not countenance the doing of anything calculated to shake public confidence in them.
44. This is however, not to say that the Courts of justice or the Judges who preside over them are not immune from legitimate criticism. But the criticism must take the form of reasonable argument or expostulations. It must be made in good faith and must be free from malice or imputation of improper motives. The right of private or public criticism within the limits is the right which is possessed by every citizen. This right of fair comments is now recognized in explanation to clause
(2) of Article 204 of the Constitution. It reads :--- "Fair comment made in good faith and in the public interest on the working of the Court or any of its final decisions after the expiry of the period of limitation for appeal, if any shall not constitute contempt of the Court."
45. The explanation embodies what had all along- been recognized as the law, namely the right of every man to make a fair and outspoken comment. He can say that the Court has given wrong decision. But as Lord Dunning, M. R. Recently observed in Rex v. Metropolitan Police Commissioner :- "They can say that we are mistaken, and our decisions erroneous. All we would ask is that who criticise us will remember that, from the nature of our office, we 'cannot reply to their criticism. We cannot enter into public controversy. Still less into political controversy."
46. There can however, be no gainsaying the fact that lawyers as officers of the Court should be as much interested to uphold the dignity and purity of Courts as the Judges themselves. It must also be conceded, that this duty includes a duty to expose any deficiencies which impede or mar the L administration of justice. But the exposure has to be in decorous an respectful language, made bona fide supportable by provable data and before a proper academic forum. Public streets are certainly not a proper forum nor are the placards provable data. This verges on blackmail which the law will not countenance.
47. This is however, not to deny that a "strong and independent Bar" is essential for an efficient judicial system in any modern State. It is the unquestioned right and privilege of the members of bar to boldly but respectfully present the controversy in question. A subservient Bar acting as "yes man" to an erring Judge will make him err all the more. A point of view strongly advanced by counsel indeed helps the Judge to think over the pros and cons of the matter and come to the right decision. This results in the mutual benefit. It helps raising the standard of advocacy as also imparts efficiency in the administration of justice. But all this happens in the Court rooms and not in the streets.
48. In an earlier part of this judgment, I have referred to a spate of contempt cases recently coming before the Courts in this country. This has been mainly before the Lahore High Court and to some extent before this Court. It is however. Gratifying to point out that none of these cases arose out of any proceedings before the Court. All recently published decisions on contempt are either sequel to press interviews vilifying the Courts of a particular Judge or certain offensive speeches made before a forum other than a Court of justice. Then there are cases of taking out processions displaying placards and this unenviable distinction goes to Lahore. I have not come across any recent case in which counsel has been punished for having said or done anything in the course of proceedings in a Court. Rather the case of Rashid Murtaza Qureshi v. The State (PLD 1966 SC 94) is remarkable case pointing to the utmost freedom allowed to counsel to press his point of view, even to the annoyance of the Judge. In that case the appellant before this Court who was then an Advocate of five years standing while appearing in the High Court threw a challenge to the Court by inviting the Court to take contempt proceedings against him and the manner in which he addressed the Court to was contemptuous. The explanation given by him was that his object was only to assert his right as a lawyer in that he felt that his assertion on a point of fact within his knowledge was not believed by the Court and be felt the question that arose was not one of his personal integrity but a reflection on the Bar in general. In these circumstances the Advocate could not see his way to apologise and wasp found in contempt and sentenced to pay fine which on appeal was remitted by this Court, although was found to have been rightly found in contempt. In the case of Ashfaque Ahmad Sheikh, also an Advocate, noticed already, he was not actually appearing in the case. He at the material time was sitting in open Court along with other Advocates who were waiting the turn of their cases, when he got up and in an insolent tone addressed the Judge that he had no power to pass the order he was making. Despite the warnings by the Judge, he persisted in his insolent behaviour.
49. Hakumat Raiv. The Crown (I L R 24,Lah. 791) is another classical example wherein counsel successfully fought for his privilege and right. Hakumat R.I, an redoubtable lawyer, protested to the Court when the latter remarked that he put unnecessary questions and adjourned the case, refusing bail, making a note of the conduct of the lawyer. Hakumat R.I called this as "most improper". The Court demanded an apology for such remarks, which was refused. A relation of the lawyer rushed then into Court whom the Chaprasi of the Court pushed out. Hakumat called: "This was indeed strange". The Court said it would draw up proceedings for contempt under section 228, I. P. C. Other lawyers intervened but Hakumat R.I stood his ground and said: "Let this be a test case".
50. Hakumat R.I was found guilty under section 228 and fined to pay Rs. 200. The High Court allowed the appeal of Hakumat R.I. Din Muhammad, J. Observed that though a lawyer has a duty to Court, the Court has also a duty to be courteous to counsel. In the instant case there was not that interruption to Court which could attract section 228, P. P. C. Much less was there insult offered to Court. I am not aware of any case, in which this view has been disputed from.
51. These then are the privileges and the obligations of the members of the Bar, about which there can be no doubt whatever. But the point I would wish to emphasize is that these rights and privileges are available to counsel in relation to proceedings in Courts, and not to slogan-mongering Advocates parading the streets.
52. Finally, Mr. Falahi, questioned the conviction of the appellants on the fundamental ground that in the absence of law or any rule as envisaged by clause (3) of Article 204 the High Court could not assume jurisdiction to try the appellants for contempt. The clause (3) is in theterms -.- "The exercise of power conferred on a Court by this Article may be regulated by law and subject to law, by rules made by the Court."
53. The argument was that subsequent to the coming into force of the Constitu--tion no law or rule has been made to regulate the jurisdiction of the superior Courts under Article 204 and in the absence of any such law or rule, the power conferred by Article 204 in the submission of learned counsel remained inchoate. When learned counsel was referred to the Contempt of Courts Act, 1926 (Act XII. Of 1926), he submitted that this Act had lapsed because it was enacted in relation to the High Courts which under the Government of India Act, 1915-19, the Government of India Act, 1935 and the 1956 Constitution were expressly created as "Courts of Record."' But according to learned counsel this status has been withdrawn from the High Courts since 1962 Constitution. He particularly referred to Article 17 of the 1956 Constitution which reads;----- "The Supreme Court and each High Court shall be a Court of record and shall have all the powers of such a Court, including the power to make any order for the investigation or punishment of any contempt of itself."
54. The argument of learned counsel was that the jurisdiction conferred by 1926 Act was available only to the Court of Record as then constituted. Since the 1962 Constitution and the two successor Constitutions did not expressly describe High Courts or the Supreme Court as Courts of Records the power available under the Act is no more exercisable by the High Courts. The argument is entirely misconceived. It overlooks the fact that neither in the Government of India Acts, 1915-19 and 1935 nor in the 1956 Constitution there was any provision comparable to Article 123 of the 1962 Constitution or Article 206 of the Interim Constitution or Article 204 of the permanent Constitution.
55. The provision of Article 176 proceeded on the common law doctrine that the power to punish for contempt of itself is a power which is inherent in a "Court of Record". As to what is precisely the meaning of expression "Court of Record" there are divergent views. However, the best statement is contained in Monograph 816 at page 346 of the Halsbury's Laws of England Vol. IX, Third Edition which for the material purpose reads .--- " . . . Certain Courts are expressly declared by statute to be Courts of record. In the case of Courts not expressly declared to be Courts of record, the answer to the question whether a Court is a Court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other. Substantive offences ; if it has such power it seems that it is a Court of record . . . . ."
56. As pointed out already, the Constitutions of 1962, 1972 and 1973 expressly confer jurisdiction upon the Supreme Court or a High Court to punish any contempt of itself. Therefore, it was wholly unnecessary to describe the Supreme Court and the High Courts as Courts or record. Even otherwise the record of the proceedings of the Supreme Court and the High Court are preserved in their archives and on conclusive evidence of what is recorded therein these are Courts of record.
57. As to whether in the absence of any law or rules framed as contemplated by clause (3) of Article 204, the High Court has jurisdiction to punish a person for contempt of itself, the matter stands concluded by this Court's judgment in the case of Ashfaque Ahmad already noticed in ibis judgment. That case was under the 1962 Constitution and the judgment was rendered with reference to Article 123(2) of that Constitution. It was held in that case that a person found guilty of any offensive act, mentioned in sub-clauses (a) to (d) of Article 132(2) is liable to be punished under Act XII of 1926. It was further observed that the exercise of power to punish for contempt under the aforesaid provision of the 1962 Constitution was "absolute and unqualified" and is not dependent upon the rules which the Court concerned is authorised to make under clause (3) of Article 123. This clause is an en--abling provision and cannot be taken to have overridden the power to punish under clause (2). This in my opinion completely negatives the contention of the learned counsel.
58. For all the-foregoing reasons the appellants are clearly in contempt and have been rightly convicted. It is a matter of great regret that throughout the proceedings in the High Court and in this Court, they did not show any proper understanding of the wrong they had done to the High Court and indirectly to their profession. It is difficult to say whether this uncompromising attitude is due to their youthful exuberance or a show of bravado spirit. In either case one may sympathise with them, but that cannot undo the wrong they have done and for which they have shown no remorse. Nothing was said about the quantum of sentence, which having regard to gravity of the contempt was appropriate. Accordingly I am constrained to dismiss the appeal leaving the appellants to serve out the remainder sentence, which will however. Be concurrent with any operative sentence, any of the appellants may have to suffer aliunde.