judicial review of administartive action - a t i. public interest litigation (pil) or social action...
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Dr. S. NATARAJUChairman, PG. Department of Law
J.S.S Law College, AutonomousMysore
Traditionally the Government functions are classified as ;
LEGISLATIVE – EXECUTIVE – JUDICIAL
Administrative action : Comprehensive term, classified into;
Rule-making action Or Quasi-legislative action ( Delegated legislation)
Rule -decision action Or Quasi-judicial action (Administrative adjudicating functions)
Rule-application action Or Administrative action ( Executive functions)
Ministerial action ( clerical functions or devoid of discretion)
JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Meaning of Judicial Review:Judicial review is a test or scrutiny of the decisions of the organs ofthe State or Administrative agencies, by the Judges of the High Courtsand the Supreme Court
Objectives:• The underlying object of judicial review is to ensure that the authorities does
not abuse its power and the individual receives just and fair treatment and notto ensure that authority reaches a conclusion which is correct in the eye oflaw.
• Judicial review is concerned not with decision but with decision-making process
• Judicial review is not an appellate process. When sitting in review of adecision, the Court will only look at the method in which the decision wasarrived at, whereas in an administrative appeal the correctness of the decisionitself will be examined, usually by a higher body in the agency.
• In India, the doctrine of judicial review is the basic feature of our Constitution.
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Judicial Review deals with three aspects:
A. Judicial review of legislative decision
B. Judicial review of Judicial decision
C. Judicial review of administrative action
Nature and scope of Judicial Review (JR):
A weapon in the hands of judiciary for the maintenance of the Rule of Law
The Court examines the decision making process was reasonable, rational ,not arbitrary or not violative of Article 14 of the Constitution.
It confine itself to the question of legality.
JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
The Amplitude of Judicial Review
ADMINISTRATIVE DISCRETION &
DIRECTIONS
CONTROL OF ADMINISTRATIVE
RULE MAKING
ADMINISTRATIVE ADJUDICATION &
PNJ
PUBLIC LAW REVIEW
PRIVATE LAW REVIEW
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Judicial Review of Administrative Discretion: Grounds ;
A. Failure to exercise of discretion:
Sub-delegation, Imposing fetters on discretion by self imposed policy, acting under dictation, non-application of mind, power coupled with duty etc.,
B. Excess of discretion or abuse of discretionary power:
Absence of power, exceeding jurisdiction, irrelevant consideration, leaving out relevant considerations, mixed considerations , mala fide or improper purpose, colorable exercise of power, violations of natural justice, unreasonableness etc.,
• In the above situations, it may be declared as ultra vires of Art.14 , 19 ,21, & the other provisions of the Constitution
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Notable instances of misuse or abuse of discretionary power:
Himat Lal.K.Shah v. Police Commissioner Air 1973 SC 87
The famous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn , All ER pp. 682 H-683 A
Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489
Purtabpore Company Ltd. v. Cane Commissioner of Bihar AIR 1970 Sc 1896(acting under dictation)
Bangalore Medical Trust v. B.S.Muddappa (improper object)
H.R.Banthia v. UOI AIR 1967 SC1170 (power to grant license to any dealer in gold ornaments (arbitrary exercise of powers)
Hamdard Dawakana v. UOI AIR 1960 SC 554 (Magic Remedies case)
K.A.Abbas v.UOI AIR 1971 SC 481
Air India v. Nargeesh Meerza AIR 1981 SC 1828
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Judicial review of Delegated laws (Administrative Rule-making) :
• The Constitutional validity of Delegated or sub-ordinate laws is subjected to Judicial review:
• Exceeding the essential law making functions of the legislature viz., power to impose tax, laying the policy of the Act, exceed the parent Act, violate the procedural norms of delegation or ultra vires the Constitution.
• Inre Delhi laws Case, Rural reservation case in Karnataka
• Judicial review of Quasi-judicial bodies(Administrative adjudicating process)
• Reasons for Administrative adjudicating process
• Judicial review in case of violations of PNJ : Indhira Nehru v. Raj Narain (1975), Kesavananda Bharathi v. Sate of Kerala, (1973) , Maneka Gandhi v.UOI ( 1978)
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Tools of Judicial Law Review:A. Public Law Review: Power of SC under Article .32 ,136 r/w Art.21
Power of High Courts under Art.226 &227 (Constitutional law review )B. Private Law Review : Injunction, Declaration, Suit for damages,
affirmative action for the enforcement of public duties (e.g. Sec.133 of Cr.P.C) Ratlam Municipality case. (Non-Constitutional law review )
C. Public Interest litigation (PIL) or Social Action Litigation (SAL):Art.32 , 226, & 14 r/w 21 of the Constitution.
S.P. Gupta v.UOI (1981) supp SCC 87Bandhua Mukti Morcha v. UOI(1987) 1SCC 378
Bhopal Case (Union Carbide Corporation V.Union of India) AIR 1990 SC273.followed by; Charnlal Sahu V.UOI(1989)4 SCC 286Vellore Citizens ‘ Welfare Forum v . UOI (1996) 5 SCC 368Vishaka v. State of Rajasthan ((1997) 6 SCC573
D. Class Actions or Representative suits: Section 91 and Order I Rule 8 of CPC.
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Writs under Article 32 &226
• Writs are extra ordinary remedies in cases wherethere is either no remedy available under theordinary law or the remedy available is inadequate.
• In common law, a writ is a formal written orderissued by a body with administrative or judicialjurisdiction; in modern usage, this body is generally acourt. Warrants, prerogative writs and subpoenas aretypes of writs; there are many others.
• It is discretionary power conferred on the Courts toissue or not issue a Writ.
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• Article.32(Supreme Court) and Article.226(High Courts) areempowered to issue Writs by the Constitution to any citizen,whose rights are violated.
• Under Article 32; an individual can move to the SupremeCourt for enforcement of fundamental right only. However,under Article 226. High Courts can be approached forenforcement of any legal right, including fundamental right .
• Depending upon circumstance, the various types of writs canbe issued. Namely,
• WRIT OF HABEAS CORPUS• WRIT OF MANDAMUS• WRIT OF PROHIBITION• WRIT OF CERTIORARI• WRIT OF QUO WARRANTO
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Principles for the exercise of Writ jurisdiction• Writs – Discretionary remedy
• Alternative remedy
• Laches or delay
• Res judicata
• Locus standi -exception in PIL cases
• Prima facie case
• Writ lies against- i. a Person ii. Statutory bodies perform public function or duty, dispute involving public law character(property /title dispute.etc.,)
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Writ of Habeas Corpus:• To have a body
• Object: To set free a person illegally detained
• Producing Body in Court Necessary?
• Petition by friend/Relative also. Locus Standi liberalised
• Writ addressed to:– Government
– An Official
– Private Person
• For disobedience : Contempt of Court
• Case: ADM Jabalpur case
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Writ of Mandamus:• Mandamus = A Command• Order to do something: demands some activity• Command to perform Public or Quasi-public duty• Writ available against:
– Government– Public Servant – Judicial Body
• Writ not available against– President of India– Governor– Private Individual
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Writ of Prohibition:• Order to stay a judicial Proceeding• When?
– Excess of Jurisdiction– No Jurisdiction
• During pendency of proceeding (Prevention)• To whom?
– Judicial Authority– Quasi-judicial Authority– Public Servant having duty to act judicially
• Not to Administrative Authority
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Writ of Certiorari:• To whom: Judicial or Quasi-Judicial Authority
• Object: To quash order or decision (Cure)
• When?– Court or Tribunal acts without jurisdiction
– Principles of Natural Justice not followed:• Bias: Personal, Pecuniary
• Audi Alteram Partem
• Speaking Order
– Decision obtained by Fraud, Collusion, Corruption
– Error of Law apparent on the face of record
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
Writ of Quo Warranto:• Quo Warranto = What authority?• Court inquires into legality of claim to Public Office
a) The office is public and of substantive nature;b) The office is created by the State or by the
Constitution itself; andc) The respondent must have asserted his claim to the
office.• Court ousts incumbent if claim not well founded• Object: To prevent usurpation of Public Office
(Constitutional or Statutory)• When?
– Disqualified for the post– Procedure not followed– Irregular appointment
• Locus standi liberal
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JUDICIAL REVIEW OF ADMINISTARTIVE ACTION
The other mechanisms to rectify the Administrative Faults:
Ombudsman
Right to Know & Right to Information
Discretion to Disobey
CVC
Administrative Tribunals
Right to Monetary compensation (Contractual/Tortiousliability/Vicarious liability/ Liability for personnel faults)
Doctrine of legitimate expectation, Public Accountability& proportionality
Privileges & immunities of the administration in suits
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“The range of judicial review recognized in thesuperior judiciary in India is perhaps the widest
and the most extensive known to the world of law”
-Pathak,C.J.
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Meaning
Anything that curtails or impairs the freedom of limits of the judicial
proceedings must of necessity result in hampering of the administration of
Law and in interfering with the due course of justice. This necessarily
constitutes contempt of court.
Oswald defines “contempt to be constituted by any conduct that tends to bring
the authority and administration of Law into disrespect or disregard or to
interfere with or prejudice parties or their witnesses during litigation.”
Halsbury defines contempt as “consisting of words spoken or written which
obstruct or tend to obstruct the administration of justice”
Black Odgers enunciates that „it is contempt of court to publish words which
tend to bring the administration of Justice into contempt, to prejudice the
fair trial of any cause or matter which is the subject of Civil or Criminal
proceeding or in anyway to obstruct the cause of Justice.”
Meaning• Anything that curtails or impairs the freedom of limits of the
judicial proceedings
• Any conduct that tends to bring the authority and administration
of Law into disrespect or disregard or to interfere with or
prejudice parties or their witnesses during litigation.
• Consisting of words spoken or written which obstruct or tend to
obstruct the administration of justice
• Publishing words which tend to bring the administration of
Justice into contempt, to prejudice the fair trial of any cause or
matter which is the subject of Civil or Criminal proceeding or in
anyway to obstruct the cause of Justice.
Meaning
V.C. Mishra’s case (1995) 2 SCC 584 –
Contempt of court is defined as an act or omission calculated to interfere with the due administration of justice.
It can be defined as Willful disobedience to, or opendisrespect of a court or judge. Contempt means lack of respector reverence for something.
Baradakanta Mishra V Bhimsen Dixit ; 1973 (1) SCC 446
“Contempt of court is disobedience of the court by acting in position to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of the court order, it also signifies such conduct as tends to bring the authority of the court and the administration of justice into dispute”.
Contempt of Courts Act of 1971 -
Section 2(a)
“Civil contempt or criminal contempt, it isgenerally felt that the existing law relating tocontempt of courts is somewhat uncertain,undefined and unsatisfactory. The jurisdiction topunish for contempt touches upon two importantfundamental rights of the citizens, namely, theright to personal liberty and the right to freedomof expression. It was, therefore, consideredadvisable to have the entire law on the subjectscrutinized by a special committee.”
Object and Need OBJECT:
To keep the administration of justice pure and Undefiled.
NEED:
To deal sternly with any action which has the tendency to
interfere with, or
Obstruct
the due course of justice.
Contempt jurisdiction is inherent in a court of record from the very nature of court itself.
Conceptual Analysis
CONTEMPT JURISDICTION TOUCHES UPON TWO FUNDAMENTAL RIGHTS : – The right to personal liberty
– The right to freedom of expression
A CONFLICT between
Freedom of speech in the Constitution
versus
Need to safeguard the status and dignity of courts
and
interests of administration of justice.
Contempt of Court – Position Under the
Constitution
• Constitution of India -Art. 129 :Supreme Court to be a court of
record.—The Supreme Court shall be a court of record and shall
have all the powers of such a court including the power to punish for
contempt of itself.
• Art.215: High Courts to be courts of record.—Every High Court
shall be a court of record and shall have all the powers of such a
court including the power to punish for contempt of itself.
• Art.144:Civil and judicial authorities to act in aid of the
Supreme Court.—All authorities, civil and judicial, in the territory
of India shall act in aid of the Supreme Court.
• Art.141. Law declared by Supreme Court to be binding on all
courts.— The law declared by the Supreme Court shall be binding
on all courts within the territory of India.
Contempt of Court – Position Under the
Constitution
• 142. Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc.— (1) The Supreme Court in the
exercise of its jurisdiction may pass such decree or make such order
as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or order so made shall
be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and,
until provision in that behalf is so made, in such manner as the
President may by order prescribe.
• Art.261. (1) Full faith and credit shall be given throughout the
territory of India to public acts, records and judicial proceedings of
the Union and of every State.
The Contempt of Courts Act,1971
Objective of the Act.
To define & limit powers of certain courts in punishing contempt of courts & to uphold
the majesty and dignity of law courts and their image in the minds of the public is no way
whittled down.
Contempt of court " - civil contempt or criminal contempt.
Civil contempt " - willful disobedience to any judgment, decree, direction, order, writ or other
process of a court or willful breach of an undertaking given to a court ; [Sec. 2 (b)]
Criminal contempt " - publication (whether by words. spoken or written, or by signs, or by
visible representations, or otherwise) of any matter or the doing of any other act whatsoever
which-
i. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of,
any court ; or
ii. Prejudices, or interferes or tends to interfere with, the due course of any
judicial proceeding; or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner ; [Sec. 2 (c)
The Contempt of Courts Act,1971-
Salient Features Innocent publication and distribution of matter - not
contempt (Sec.3)
Fair and accurate report of judicial proceeding - notcontempt (Sec 4)
Fair criticism of judicial act - not contempt(Sec.5)
Complaint against presiding officers of subordinatecourts when not contempt- in respect of any statementmade by him in good faith (Sec.6)
Publication of information relating to proceedings inchambers or in camera - not contempt except in certaincases (Sec 7 )
Act not to imply enlargement of scope of contempt (Sec9.)- Due regard to Constitutional Provisions
Salient Features
Power of High Court to punish contempt of subordinatecourts - Every High Court shall have and exercise thesame jurisdiction, powers and authority, in accordancewith the same procedure and practice, in respect ofcontempt of courts subordinate to it as it has andexercises in respect of contempt of itself :
• Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.(45 of 1860) [Sec.10]
Punishment for Contempt of Courts
• Power of High Court to try offences committed oroffenders found outside jurisdiction (Sec.11)
• Punishment for contempt of court
• (1) Save as otherwise expressly provided in this Act or inany other law, a contempt of court may be punished withsimple imprisonment for a term which may extend to sixmonths, or with fine which may extend to two thousandrupees, or with both. :
• Provided that the accused may be discharged or thepunishment awarded may be remitted on apology beingmade to the satisfaction of the court.
• Explanation.-An apology shall not be rejected merely onthe ground that it is qualified or conditional if theaccused makes it bona fide. [Sec.12]
Essentials of civil contempt of court
1. The making of a valid court order,
2. Knowledge of the order by respondent,
3. ability of the respondent to render compliance, and
4. Wilful disobedience of the order.
Limitation period for initiating contempt proceedings
Sec. 20 - The Limitation period for actions of contempt is a period of one year from the date on which the contempt is alleged to have been committed.
Cognizance of criminal contempt in
other cases – Sec. 15Criminal Contempt, (1) In the case of a criminal contempt, other than
a contempt referred to in section 14, the Supreme Court or the HighCourt may take action on its own motion or on a motion made by-
(a) the Advocate-General, or
(b) any other person, with the consent in writing of the Advocate
General
• (2) In the case of any criminal contempt of a subordinate court, theHigh Court may take action on a reference made to it by thesubordinate court or on a motion made by the Advocate-General or,in relation to a Union territory, by such Law Officer as the CentralGovernment may, by notification in the Official Gazette, specify inthis behalf.
Procedure
Procedure after cognizance - Sec. 17
(1) Notice of every proceeding under section 15shall be served personally on the person charged,unless the court for reasons to be recordeddirects otherwise.
Procedure to decide Contempt of Court - Sec. 18
Hearing of cases of criminal contempt to be by Benches.
(1) Every case of criminal contempt under section 15 shall be heard and determined by a Bench of not less than two Judges.
Appeals – Sec. 19
(1) An appeal shall lie as of right from any order or decision of High
Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a single Judge, to a Bench
of not less than two Judges of the Court ;
(b) where the order or decision is that of a Bench, to the Supreme
Court
Limitation for Appeal - 19(4)
An appeal under sub-section (1) shall be filed-
(a) in the case of an appeal to a Bench of the High Court, within
thirty days ;
(b) in the case of an appeal to the Supreme Court, within sixty days,
from the date of the order appealed against.
Contempt of Courts-Some Case studies
1. M.B. SANGHI, ADVOCATE v. HIGH COURT OF PUNJAB AND HARYANA [AIR
1991 SC 1834:1991( 3 )SCC 600]
Unable to secure an ad-interim stay in favour of his client, the appellant, a practicing
Advocate, uttered certain words imputing motives to the Sub-Judge in refusing to grant the
stay.- Had the effect of scandalizing the Court and impairing confidence of public in Court—
Hence guilty of contempt Apology-Tendering of--Not to serve as mere defense against rigors of
law- Should reflect remorse and contrition of contemnor- Tendering 'unqualified apology' in
case Court finds him guilty--Not sincere-Contemnor addicted to use of contemptuous language
against Judges and tendering apology--Apology used merely a device to escape--Not to be
accepted--Use of contempt jurisdiction against erring members of legal profession- Courts are
slow in the hope that Bar Councils will take care to maintain ethical norms- Decline in ethical
values in the profession-Arrest of- Timely action by Bar Councils- Need for -held- “It is well-
settled that an apology is not a weapon of defence to purge the guilty of their offence; nor is it
intended to operate as a universal panacea, but it is intended to be evidence of real
contriteness.”
IN RE : VINAY CHANDRA MISHRA
(1995) 2 SCC 584
Facts of the case
Allegations of contempt committed in the face of a High Court were
made against a Senior Counsel. He was asked by the Bench
regarding the provision under which the impugned order had been
passed. He started shouting at the bench. He said would get the
Judge transferred or impeached and threatened by saying that he had
“turned up many judges”. He created a scene in the Court. He lost
his temper and, according to the Judge, “except to abuse him of
mother and sister” the contemnor had insulted him like anything.
The contemnor was also President of the Bar and Chairman of the
Bar Council of India. The matter was referred by the Acting Chief
Justice to the Supreme Court.
IN RE : VINAY CHANDRA MISHRA
(1995) 2 SCC 584
• The Supreme Court took suo motu cognizance and issued a show
cause notice to the contemnor. In his counter and additional counter,
a different version of the incident was put up by the contemnor. He
alleged that in fact it was the judge who had committed contempt of
his own court. He filed application for initiating proceedings
against the Judge. At a subsequent stage written unconditional
apology was also filed by the contemnor by seeking therein to
withdraw his application, petitions, counters, allegations and
submissions. The Court sentenced the contemnor VC Mishra to
undergo simple imprisonment for six weeks. Also he was
suspended from practicing as an advocate for a period of three
years.
IN RE : VINAY CHANDRA MISHRA (1995)
2 SCC 584 - Principle laid down
1. Supreme Court can take cognizance of a contempt of a High Courtand suo motu initiate contempt proceedings against the contemnor.
2. When a High Court is dealing with a case of criminal contempt andthere is justification for adopting summary procedure and punishingthe offender on the spot, the contemnor has no right to examine theJudge or Judges before whom contempt is alleged to have beencommitted.
3. Jurisdiction and power of Supreme Court to take cognizance of anycontempt of court and to award punishment for it are notcircumscribed by any statute.
4. Judiciary in a democratic written Constitution has been assigned aspecial role and hence the need to protect its dignity and authority.There is a need and justification for vesting the extraordinary powerin a court to punish for the contempt of the Court.
5. Every member of the Bench is on a par with the other member ormembers of the Bench. The lawyer or the litigant concerned has toanswer the questions put to him by any member of the Bench.
ARUNDHATI ROY, In Re (2002) 3 SCC 343
Facts of the case
Arundhati Roy, a writer, was interested in the result of a litigation
pending before the Supreme Court. It was alleged that at a dharna
organised in front of Supreme Court she had raised improper slogans
against the Court. When issued a show cause notice, she denied having
raised such slogans. She further stated that the Supreme Court could not
spare a sitting Judge to hold inquiry into Tehelka Scandal. However, when
it came to an absurd, despicable and entirely unsubstantiated petition, it
displayed a disturbing willingness to issue notice. She added that the same
indicated a disquieting inclination to silence criticism and muzzle dissent,
to harass and intimidate those who disagreed with the Supreme Court.
Judgment: The court sentenced her to simple imprisonment for one day and to
pay a fine of Rs. 2000/-. In case of default of payment of fine, she was to
undergo simple imprisonment for three months.
ARUNDHATI ROY, In Re (2002) 3 SCC 343
1. Proceedings under Section 14 of the Contempt of Courts Act are distinguishablefrom Section 15 of the said Act. When action is at the instance of the Court there isno question of any motion of and prejudice from any Judge. Accepting the plearaised by the respondent would amount to depriving all the Judges of the Court tohear the matter and thus frustrate the contempt proceedings which cannot be themandate of law.
2. The judiciary is not immune from criticism but when that criticism is based onobvious distortion or gross misstatement and made in a manner which is designedto low.er the respect of the judiciary and destroy public.
3. Under the Constitution, there is no separate guarantee of the freedom of the pressand it is the same freedom of expression, which is conferred on all citizens underArticle 19(1). Any expression of opinion would therefore, be not immune from theliability for exceeding the limits either under the law of defamation or contempt ofcourt or the other constitutional limitations under Article 19(2).
4. When a respondent has not shown any repentance or regret or remorse, no lenientview should be taken in the matter. It is difficult for the court either to shrug off orto hold the accusations made as comments of an outspoken ordinary man andpermit the wrong headed to err therein.