CENTRAL UNIVERSITY OF SOUTH BIHAR, GAYA

School of Law & Governance

PROJECT WORK

CASE ANALYSIS ON Subramanian Swamy Vs. Arun Shourie (2014) 12

SCC 344

Submitted to:
Submitted by: DR. ASHOK KUMAR
Assistant Professor of Law,
ANESH KUMAR
Xth Semester (2019-24) School of Law & Governance,
Central University of South Bihar, Gaya
B.A.LL.B. (Hons.)
E. No.: CUSB1913125021
Course Title- Professional Ethics &
Section: A
Professional Accounting System
Course Code- BALAW10001C04

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 ACKNOWLEDGEMENT

There is always a sense of gratitude one expresses to the other for their helpful and needy
service they render during all phases of life. I wish to express my deep gratitude towards all
of them. My deepest thanks to our Professor Dr. Ashok Kumar for guiding and helping at
every stage during the completion of this project with attention and care.

I would like to thank my parents for the emotional support. I would also like to thank my
friends, institution and every single person who are related with this project in any way and
without whom this would have been a distant reality.

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 CASE ANALYSIS

Citation: Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344

Judgment Date: July 23, 2014
Themes: Contempt of Court

Case summary and Outcome

The Supreme Court of India dismissed the contempt petitions filed against the respondent for
publishing an editorial in Indian express in which a sitting judge of Supreme Court was
criticised. An editorial was published in the Indian Express newspaper bearing the caption "If
shame had survived". In the editorial, it was opined that Justice Kuldip Singh the then sitting
Judge of Supreme Court, had overlooked and suppressed the evidence and facts, while he was
chairman of the Commission of inquiry to probe into alleged acts of omissions and
commissions by Shri Ramakrishna Hegde, the former Chief Minister of Karnataka and gave
clean chit to the Chief Minister in his report. These comments made in the editorial led to suo
motu contempt proceedings and another contempt petition filed by Dr. Subramanian Swamy
initiated against the editor of Indian Express. The Supreme Court recognised that truth can be
pleaded as defence in contempt proceedings and observed that the Commission appointed
under the 1952 Act is not a Court for the purposes of Contempt of Courts Act even though it is
headed by a sitting Supreme Court Judge. Accordingly, the contempt proceedings were
dismissed by the Hon’ble Supreme Court.

FACTS:

This case concerns a suo-moto contempt petition and another contempt petition filed by Dr
Subramanian Swamy against the Respondent Arun Shourie for comments made in the editorial
of Indian Express Newspaper.

Justice Kuldip Singh, the then sitting Judge of the Supreme Court, was appointed as Chairman,
Commission of Inquiry under the Commissions of Inquiry Act, 1952 to probe into alleged acts
of omissions and commissions by Shri Ramakrishna Hegde, the former Chief Minister of

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Karnataka. In the editorial bearing the caption “If shame had survived” published in the Indian
Express, a criticism was attributed to Justice Kuldip Singh while he was Chairman of the
Commission of inquiry for overlooking and suppressing the evidence against the former Chief
minister in the alleged acts and omissions. It was stated that:

The legal opinion that the former Chief Justice of India, Mr. Y.V. Chandrachud, has given on
the Kuldip Singh Commission's report is a stunning indictment. the Commission itself as well
as the energetic prosecutor himself declaring one day that neither had a shred of evidence which
cast a doubt on Hegde and the very next day declaring a conclusion; refusing to common
witnesses for cross-examination on the pretext that the Commission did not have the power to
call them-this in the face of clear judgments to the contrary; It is the longest possible list of
suppresso veri suggesto falsi. If there had been any sense of honour or shame, a Judge would
never have done any of this. If there were any residual sense of honour or shame, the Judge
having done any of it and having been found doing it, would have vacated his seat. But this is
India. of 1990, the Commissioner Kuldip Singh having perpetrated such perversities will
continue to sit in judgment on the fortunes and reputations of countless citizens. He will
continue to do so from nothing less than the Supreme Court of India itself.

On the basis of the above averments, a contempt petition was filed by Dr. Subramanian Swamy
and the then chief Justice of India obtained opinion of the Attorney General for India in the
matter. The then Attorney General Shri Soli Sorabjee noted that the editorial had, prima facie,
overstepped the limits of permissible criticism and the law of contempt, as was existing in the
country, did not provide for truth as defence and, therefore, he opined that an explanation was
called for and a notice could be issued for that purpose. Based on his opinion, Suo moto
contempt proceedings started against the respondent. The suo motu contempt matter and so
also the contempt petition filed by Dr. Subramanian Swamy came up for consideration before
the three Judge Bench of Supreme Court headed by the Hon'ble the Chief Justice.

FACT IN ISSUES:

1. This case concerns a suo-moto contempt petition and another contempt petition filed
by Dr Subramanian Swamy against the Respondent Arun Shourie for comments made
in the editorial of Indian Express Newspaper.

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 2. In the editorial bearing the caption “If shame had survived” published in the Indian
Express, a criticism was attributed to Justice Kuldip Singh while he was Chairman of
the Commission of inquiry for overlooking and suppressing the evidence against the
former Chief minister in the alleged acts and omissions. It was stated that the
Commission of Inquiry headed by Justice Kuldip Singh declared that they didn’t have
a shred of evidence against the accused. Suppression of truth is equivalent to the
suggestion of what is false.
3. This led to suo moto contempt proceedings against the respondent who was the editor
of Indian Express. Also a separate contempt petition was filed by Subramanian Swamy
against the Respondent.
4. The Respondent pleaded truth as a defence in the contempt proceedings.

Issues Raised/Constitutional (Legal) Question:

I. When a sitting Supreme Court Judge is appointed as a Commissioner by the Central

Government under the 1952 Act, does he carry with him all the powers and jurisdiction
of the Supreme Court?
II. Whether the functions which are discharged by the Supreme Court Judge as a
Commissioner are purely statutory functions independent of the jurisdiction vested in
the Supreme Court?
III. Whether truth can be pleaded as defence in contempt proceedings?
IV. Whether the Commission comprising of a sitting Supreme Court Judge would come
within the meaning of “Court” Under Section 2(c)(i) of The Contempt of Courts Act,
1971?
V. Whether the proceedings before the Commission are judicial proceedings for the
purposes of Section 2(c)(ii)?

PARTIES CONTENTION

Petitioner-

It is contended by the petitioner that the editorial is a scandalous statement in respect of a sitting
Judge of the Supreme Court of India and the judiciary. It lowers the authority of this Court as
well as shakes public confidence in it and amounts to criminal contempt of this Court.
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It is submitted that unless this Court acts promptly and if necessary, suo motu in the matter,
sitting Judges would be helpless and unable to defend themselves, and in the process, public
confidence in judges and the courts would be eroded.

Respondent-

The learned Counsel for the alleged contemnors contended that truth can be pleaded as a
defence in contempt proceedings and that the decision of this Court in Perspective Publications
(Pvt.) Ltd. and Anr. v. State of Maharashtra (1969) 2 SCR 779 needs re-consideration.

The contention of the counsel on behalf of the respondent is that when a Supreme Court Judge
is appointed as a Commissioner in a Commission of Enquiry he does not carry with him all the
powers and jurisdiction of the Supreme Court and the functions discharged by him are statutory
functions independent of the jurisdiction vested in the Supreme Court and, therefore, the
alleged contempt of a sitting Judge of the Supreme Court in relation to the statutory functions
discharged by him as a Commissioner cannot in law be regarded as a contempt of Supreme
Court itself.

RULE OF LAW

The basic rule of law that was applied here was that the Commission of enquiry is not a “court”
for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court
Judge.

• Article 129, Constitution of India

• Section 2(c), 13, 15 of The Contempt of Courts Act 1971
• Section 19, 20 of Indian Penal Code
• Section 4, 5, 5A, 10A of The Commissions of Inquiry Act, 1952

JUDGMENT

The Court on the first issue of contention, i.e. whether truth can be pleaded as defence in
contempt proceedings, referred and analysed precedents and concluded that truth can be used
as a defence if two things are satisfied, viz., (i) it is in public interest and (ii) the request for
invoking said defence is bona fide.

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On the second issue of Contention, whether the Commission comprising of a sitting Supreme
Court Judge would come within the meaning of “Court” under Section 2(c)(i) of The
Contempt of Courts Act, 1971, held that a Commission appointed under the 1952 Act is in the
nature of a statutory Commission and merely because a Commission of Inquiry is headed by a
sitting Judge of the Supreme Court, it does not become an extended arm of this Court. The
Commission is not a court.

The Court held that the Commission is not a Court and hence the comments made on Justice
Kuldip Singh for his actions as a Chairman of the Commission of enquiry does not amount to
contempt of court. The Contempt petitions were dismissed and the contempt notices were held
to be discharged.

The Constitution Bench comprising R.M Lodha, CJ. and A.R Dave, S.J Mukhopadhaya, Dipak
Misra and S.K Singh, JJ., answered the question in negative, holding that a Commission
despite being headed by a Supreme Court judge and having a legal character is not a ‘Court’
for the purposes of the Contempt of Courts Act, 1971.

ANALYSIS OF STATUTES & PRECEDENTS

On the question whether truth can be pleaded as a defence, the court referred to an old Privy
Council case Ambard v. Attorney-General for Trinidad and Tobago [(1936) AC 322), which
held that reasoned or legitimate criticism of judges or courts is not contempt of court. The path
of criticism is a public way provided that members of the public abstain from imputing
improper motives to those taking part in the administration of justice, and are genuinely
exercising a right of criticism, and not acting in malice or attempting to impair the
administration of justice, they are immune.

Then the Court went on to analyse an Australian case of Nationwide News Pty. Ltd. v. Wills
[(1992) 177 CLR 1] where the High Court of Australia suggested that truth could be a defence
if the comment was also for the public benefit. It said, "...The revelation of truth-at all events
when its revelation is for the public benefit-and the making of a fair criticism based on fact do
not amount to a contempt of court though the truth revealed or the criticism made is such as to
deprive the court or judge of public confidence.

The Court observed that the legal position with regard to truth as a defence in contempt
proceedings is now statutorily settled by Section 13 of the Contempt of Court Act 1971. Clause

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

The Court approved the view of the two Judge Bench in Indirect Tax practitioners'
Association v. R.K. Jain (2010) 8 SCC 281. In this case, the two Judge Bench held that the
amended section enables the Court to permit justification by truth as a valid defence in any
contempt proceedings if it is satisfied that such defence is in public interest and the request for
invoking the defence is bona fide. It observed that the substituted Section 13 represents an
important legislative recognition of one of the fundamentals of our value system i.e. truth. The
amended section enables the court to permit justification by truth as a valid defence in any
contempt proceeding if it is satisfied that such defence is in public interest and the request for
invoking the defence is bona fide. In our view, if a speech or article, editorial, etc. contains
something which appears to be contemptuous and this Court or the High Court is called upon
to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth
should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to
escape the consequences of deliberate or malicious attempt to scandalise the court or is an
interference with the administration of justice.

Then the Court turned its attention to answer the question as to whether a sitting Supreme
Court Judge who is appointed as a Commissioner by the Central Government under the 1952
Act carries with him all the powers and jurisdiction of the Supreme Court. The court referred
to relevant provisions of the two Acts, namely, the 1971 Act and the 1952 Act.

Section 2(c) of the Contempt of Court Act 1971 defines criminal contempt to mean the
publication (whether by words, spoken or written, or by signs, or by visible representation, or
otherwise) of any matter or the doing of any other act whatsoever

i. which scandalises or tends to scandalise, 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;

Thereafter, the Court analysed the meaning of three expressions "court" in Clause (i), "judicial
proceeding" in Clause (ii) and "administration of justice" in Clause (iii) of Section 2(c).

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As to the question whether functions of the Commission appointed under the 1952 Act are
like a body discharging judicial functions or judicial power, the Court referred to section 4,
5, 5A of The Commissions of Inquiry Act, 1952. Under Section 4, the Commission has powers
of a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the
matters, namely, (a) summoning and enforcing the attendance of any person from any part of
India and examining him on oath; (b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits etc

Under Section 5(4), the Commission is deemed to be a civil court. Under Section 5(5), any
proceeding before the Commission is deemed to be a judicial proceeding within the meaning
of Sections 193 and 228 of the Indian Penal Code. Section 5A empowers the Commission to
utilize the services of certain officers and investigation agencies for conducting investigation
pertaining to inquiry. Section 10 makes provision for every member of the Commission and
every officer appointed or authorized by the Commission in exercise of functions under the Act
is deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.

After analysis of the Provisions, the Court came to conclusion that functions of the Commission
appointed under the 1952 Act are not like a body discharging judicial functions or judicial
power. The Commission appointed under the 1952 Act is not a Court and making the inquiry
or determination of facts by the Commission is not of judicial character.

Thereafter the Court enumerated or the pre-eminent tests of a court. The Court means the
authority which has the legal power to give a judgment which, if confirmed by some other
authority, would be definitive. The Court is an institution which has power to regulate legal
rights by the delivery of definitive judgments, and to enforce its orders by legal sanctions and
if its procedure is judicial in character in such matters as the taking of evidence and the
administration of oath, then it is a court. After listing out the prerequisites of a court, the Court
observed that the Commission constituted under the 1952 Act does not qualify as a court.

The court was in full agreement with the legal position exposited in the case of Brajnandan
Sinha v. Jyoti Narain (1955) 2 SCR 955 where a three Judge Bench of this Court had an
occasion to consider the question whether the Commissioner appointed under Public Servants
(Inquiries) Act, 1850 (Act 37 of 1850) is a Court. In that case, Coke on Littleton and Stroud
was referred that says that "Court" is the place where justice is judicially administered. The
Constitution Bench laid down that both finality and authoritativeness were the essential tests
of a judicial pronouncement. The Court said that in order to constitute a Court in the strict sense

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of the term, an essential condition is that the Court should have, apart from having some of the
trappings of a judicial tribunal, power to give a decision or a definitive judgment which has
finality and authoritativeness which are the essential tests of a judicial pronouncement. With
reference to the provisions of Public Servants (Inquiries) Act vis à-vis Contempt of Courts Act,
1952, the three Judge Bench held that the Commissioner appointed under Public Servants
(Inquiries) Act is not a Court within the meaning of Contempt of Courts Act, 1952.

The Supreme Court again referred to the judgment of the full Bench of Madras High Court In
Re: Mr. Hayles, Editor of “The Mail” and Anr where a sitting Judge of the Madras High
Court was appointed as a member of the Industrial Tribunal Under Section 7 of the Industrial
Disputes Act. The alleged contempt with which the contemnors were charged with contempt
were both in relation to the proceedings for the Industrial Tribunal, though the Industrial
Tribunal was presided over by the sitting Judge of the Madras High Court. The full Bench of
the Madras High Court held that a Judge of the High Court when appointed as sole member of
the Industrial Tribunal, did not have the powers of a Judge of that High Court to punish persons
for contempt of the Tribunal even Under Article 215 of the Constitution of India.

The Court approved the two Judge Bench Judgment in Dr. Baliram Waman Hiray v. Justice
B. Lentin and Ors. (1988) 4 SCC 419 was concerned with a question whether a Commission
of Inquiry constituted Under Section 3 of the 1952 Act is a Court for the purposes of Section
195(1)(b) of the Code of Criminal Procedure, 1973. The court in this case held that a
Commission of Inquiry appointed by the appropriate government Under Section 3(1) of the
Commissions of Inquiry Act is not a court for the purposes of Section 195 of the Code.

The Court agreed with the following observations of the Nagpur High Court in M.V. Rajwade,
I.A.S., Dist. Magistrate v. Dr. S.M. Hassan and Ors. AIR 1954 Nagpur 71 which observed that
The Commission in question was obviously appointed by the State Government for the
information of its own mind, in order that it should not act, in exercise of its executive power,
otherwise than in accordance with the dictates of justice and equity in ordering a departmental
enquiry against its officers. It was, therefore, a fact-finding body meant only to instruct the
mind of the government without producing any document of a judicial nature.

Lastly, the Court agreed with the submission of Shri Mohan Parasaran, learned Solicitor
General that a Commission appointed under the 1952 Act is in the nature of a statutory
Commission and merely because a Commission of Inquiry is headed by a sitting Judge of the
Supreme Court, it does not become an extended arm of this Court. The Commission constituted

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under the 1952 Act is a fact finding body to enable the appropriate Government to decide as to
the course of action to be followed. Such Commission is not required to adjudicate upon the
rights of the parties and has no adjudicatory functions. The Government is not bound to accept
its recommendations or act upon its findings. The mere fact that the procedure adopted by the
Commission is of a legal character and it has the power to administer oath will not clothe it
with the status of Court.

CONCLUSION

The Hon’ble court after analysing the precedents and specific provisions of Contempt of Court
Act held that sitting Supreme Court Judge when appointed as a Commissioner by the Central
Government under the 1952 Act, does not carry with him all the powers and jurisdiction of the
Supreme Court because the Commission appointed under the 1952 Act is not a Court for the
purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge.

The court also upheld the defence of truth against an action for remarks against the sitting Judge
of the Supreme Court in his role as chairman of the Enquiry Commission.

DECISION DIRECTION

The Court was progressive in its decision to dismiss contempt petitions against the respondent.
The trend so far has been that Indian courts rarely, if ever, allow the defence of truth. This case
is the only notable example where court upheld the defence of truth against an action for
remarks against a sitting Judge of the Supreme Court in his role in an investigation committee
appointed by the government.

GLOBAL PERSPECTIVE

The Hon’ble Supreme Court referred to two cases of foreign origin to decide whether truth can
be pleaded as defence in contempt proceedings. It relied on the judgment of Privy Council in
Ambard v. Attorney-General for Trinidad and Tobago (1936) AC 322 which held that
reasoned or legitimate criticism of judges or courts is not contempt of court.

In reference to an Australian case of Nationwide News Pty. Ltd. v. Wills [(1992) 177 CLR 1],
the High Court of Australia suggested that truth could be a defence if the comment was also
for the public benefit. It said, “...The revelation of truth-at all events when its revelation is for
the public benefit-and the making of a fair criticism based on fact do not amount to a contempt

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of court though the truth revealed or the criticism made is such as to deprive the court or judge
of public confidence”.

CASE SIGNIFICANCE

• The decision of the court to dismiss contempt petition strengthens the freedom of
speech and expression.
• The recognition of truth as a defence in contempt proceedings signifies the widening of
scope for individual liberty and expression of thoughts.
• The decision sets a precedent that the Commission of Inquiry constituted under The
Commissions of Inquiry Act, 1952 is not a court within the meaning of Contempt of
Court Act 1971.
• This case is the only notable example where court upheld the defence of truth against
an action for remarks against a sitting Judge of the Supreme Court in his role in an
investigation committee appointed by the government.

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