http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 41

Vs.

RESPONDENT:
v. P. SHIV SHANKAR & OTHERS

DATE OF JUDGMENT15/04/1988

BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RANGNATHAN, S.

CITATION:
1988 AIR 1208 1988 SCR (3) 547
1988 SCC (3) 167 JT 1988 (2) 102
1988 SCALE (1)728
CITATOR INFO :
RF 1989 SC 190 (20)

ACT:
Contempt of Courts Act, 1971- Praying for initiation of
proceedings for Contempt of Supreme Court under section
15(1)(a) and (b) of-Read with rule 3(a), (b) and (c) supreme
Court Contempt of Court Rules, 1975, in respect of a speech
delivered at a meeting of Bar Council, reported in
newspapers.

HEADNOTE:
The respondent No. 1, Shri P. Shiv Shankar, Minister of
Law, Justice and Company Affairs at the relevant time,
delivered a speech at a meeting of the Bar Council of
Hyderabad. The petitioner alleged that in that speech the
respondent No. 1 had made statements derogatory to the
dignity of the Supreme Court, attributing to the Court
partiality towards affluent people and using extremely
intemperate and undignified language, and that the speech
contained slander cast on this Court both in respect of the
Judges and the working of the Court. He stated that he had
approached the Attorney General for India and the Solicitor
General of India to give their consent for initiating
Contempt proceedings. The Attorney General and the Solicitor
General having declined to deal with this prayer of the
petitioner, an application for initiation of Contempt under
section 15(1)(a) and (b) of the Act read with Explanation
(1) and Rule 3(a), (b) and (c) of the contempt of Supreme
Court Rules, 1975, was made, wherein Shri P. Shiv Shankar,
the Attorney General, the Solicitor General were made
parties. The Court issued notice. In response, Shri P. Shiv
Shankar filed an affidavit, stating that he had delivered
the speech on the subject of accountability of the
Legislature, Executive and the Judiciary and had made
comments on the accountability of the three organs and the
theoretical implications thereof, and that he had intended
no disrespect to any of the institutions or its
functionaries much less the Supreme Court. It was further
stated that the Contempt petition was not maintainable
without the consent of the Attorney General or the Solicitor
General. In the meantime, Shri R.N. Trivedi, Advocate, filed
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an application, claiming right to be impleaded as a party,
stating that the Attorney General and the Solicitor General
should not have been made parties to the comtempt petition
and that the alleged non-exercise of the jurisdiction by the
Attorney-General and the Solicitor General had
548
not constituted contempt within the meaning of section 2(c)
of the Act.
Declining to initiate the contempt proceeding and
dismissing the petition and disposing of the application
filed by Shri R.N. Trivedi, the Court,
^
HELD: Per Sabyasachi Mukharji, J.:
Before deciding the question whether this application
was maintainable without the consent of the Attorney General
or the Solicitor General, as contended by Dr. Chitale on
behalf of Shri Shiv Shankar, and the question whether the
Attorney General and the Solicitor General could be made
parties to the Contempt application and whether their action
or inaction was justiciable at all in any proceeding and, if
so, in what proceedings it was necessary to decide the basic
question whether the speech made by Shri P. Shiv Shankar had
amounted to contempt of this Court, or in other words,
whether the speech had the effect of bringing this Court
into disrepute. [562H; 563A-B]
Administration of justice and Judges are open to public
criticism and public scrutiny. Judges have their
accountability to the society and their accountability must
be judged by their conscience and oath of their office, that
is to defend and uphold the Constitution and the laws
without fear and favour. This the Judges must do in the
light given to them to determine what is right. Any
criticism about the judicial system or the Judges which
hampers the administration of justice or which erodes the
faith in the objective approach of Judges and brings
administration of justice into ridicule must be prevented.
The contempt of Court proceedings arise out of that attempt.
Judgments can be criticised, motives of the Judges need not
be attributed. It brings the administration of Justice into
deep disrepute. Faith in the administration of justice is
one of the pillars through which democratic institution
functions and sustains. In the free market place of ideas,
criticism about the judicial system or Judges should be
welcomed, so long as such criticisms do not impair or hamper
the administration of justice. This is how the courts should
approach the powers vested in them as judges to punish a
person for an alleged contempt, be it by taking notice of
the matter suo motu or at the behest of the litigant or
lawyer. [563C-F]
In this case, the Court had examined the entire speech.
Shri P. Shiv Shankar had examined the class composition of
the Supreme Court. His view was that the class composition
of any instrument indi-
549
cated its predisposition, prejudices. This is inevitable.
The intuition more subtle than major premise, on which the
decision will depend, is the pride and the prejudice of a
human instrument of a Judge through which objectively the
Judge seeks to administer justice according to law. So, in a
study of accountability, if class composition of the people
manning the institution is analysed, there has to be
forewarning about certain inclination and it cannot be said
that an expression or view or propagation of that view
hampers the dignity of the Courts or impairs the
administration of Justice. [565F-H; 566A]
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It has to be admitted frankly and fairly that there has
been erosion of faith in the dignity of the Court and in the
majesty of law and that has been caused not so much by
scandalising remarks made by politicians or ministers but
the inability of the courts of law to deliver quick and
substantial justice to the needy. It is a criticism which
judges and lawyers must make about themselves. We must turn
the search light inwards. At the same time, the Court cannot
be oblivious of the attempts made to decry or denigrate the
judicial process, if it is seriously done. This question was
examined in Rama Dayal Markarha v. State of Madhya Pradesh,
[1978] 3 S.C.R. 497, where it was held that fair and
reasonable criticism of a judgment which is a public
document or which is a public act of a Judge concerned with
administration of justice would not constitute contempt. In
fact, such a fair and reasonable criticism must be
encouraged because after all no one, much less Judges, can
claim infallibility. Such a criticism may fairly assert that
the judgment is incorrect or an error has been committed
with regard to law or established facts. But when it is said
that the Judge had a predisposition to convict or
deliberately took a turn in discussion of evidence because
he had already made up his mind to convict the accused or
has a wayward bend of mind, is attributing motives, lack of
dispassionate and objective approach and analysis and
prejudging of issues, that would bring administration of
justice into ridicule. Such criticism sometime interferes
with the administration of justice and that must be judged
by the yardstick whether it brings the administration of
justice into ridicule or hampers administration of justice.
After all, it cannot be denied that pre-disposition or
subtle prejudice or unconscious prejudice or what in Indian
language is called "Sanskar" are inarticulate major premises
in decision making process. That element in decision making
process cannot be denied, it should be taken note of. [569B-
G]
It has to be borne in mind, as has been said by
Banjamin N. Cardozo in "The Nature of the Judicial Process"
that the judge as the
550
interpreter for the community of its sense of law and order
must supply omissions, correct uncertainties and harmonize
results with justice through a method of free decision.
Courts are to "search for light among the social elements of
every kind that are the living force behind the facts they
deal with". [569G-H; 570A]
Though at places, intemperate, the statement of the
Minister in this case cannot be said to amount to
interference with the administration of justice and to
amount to contempt of court. The Administration of justice
in this country stands on surer foundation. In the speech,
it appears that Shri P. Shiv Shankar was making a study of
the attitude of this Court. It was stated that the Supreme
Court was composed of the element from the elite class.
Whether it is factually correct or not is another matter. In
public life, where the champions of the down trodden and the
politicians are mostly from the so-called elite class, if
the class composition is analysed, it may reveal interesting
factor as to whether elite class is dominant as the
champions’ of the oppressed or of the social legislations
and the same is the position in the judiciary. But the
Minister went on to say that because the Judges had their
’unconcealed sympathy for the haves’ they interpreted the
expression ’compensation’ in the manner they did. The
expression ’unconcealed’ was unfortunate. But this was also
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an expression of opinion about an institutional pattern.
Then, the Minister went on to say that because of this the
word ’compensation’ in Article 31 was interpreted contrary
to the spirit and intendment of the Constitution. The
Constitution had to be amended to remove this ’oligarchic’
approach of the Supreme Court with little or no help. The
inter-action of the decisions of this Court and the
constitutional amendments had been viewed by the Minister in
his speech, but that was nothing new. This by itself does
not affect the administration of justice. On the other hand,
such a study is perhaps important for the understanding of
the evolution of the constitutional development. Criticisms
of judgments is permissible in a free society. [573C-D;
575E-H; 576A-B,F]
There was one paragraph which appeared to be rather
intemperate, it read thus:
"Anti-social elements i.e. FERA violators, bride
burners and whole hordes of reactionaries have found their
heaven in the Supreme Court". [576F-G]
That, if true, is a criticism of the laws. The Supreme
Court, as it is bound to do, has implemented the laws and in
implementing the laws it
551
is a tribute to the Supreme Court that it has not
discriminated between persons and persons. Criminals are
entitled to be judged in accordance with law. If anti-social
elements and criminals have benefited by decisions of the
Supreme Court, the fault rests with the laws and the
loopholes in the legislation. The Courts are not deterred by
such criticisms. [576G-H]
Bearing in mind the trend in the law of contempt as
noticed before, as well as in some of the decisions noticed
by Krishna Iyer, J. in the case of Re: S. Mulgaokar, [1978]
3 S.C.R. 162, the speech of the Minister read in its proper
perspective, did not bring the administration of justice
into disrepute or impair administration of justice. In some
portions of the speech, the language used could have been
avoided by the Minister. The Minister perhaps could have
achieved his purpose by making his language mild but his
facts deadly. With these observations, it must be held that
there was no imminent danger of interference with the
administration of justice, nor of bringing administration of
justice into disrepute. In that view, it must be held that
the Minister was not guilty of contempt of Court. [577A-C]
Another question of law of some importance had arisen
in this matter. Under the Act, in case of criminal contempt
other than a contempt referred to in section 14 which was
not this case, namely a contempt of this Court or a High
Court, this Court or the High Court may take action either
on its own motion or on a motion made by the Advocate-
General, which in relation to this Court means the Attorney
General or the Solicitor-General or any other person with
the consent of the Attorney-General in terms of section 15
of the Act. Cognizance for criminal contempt could be taken
by the Court by three methods, namely on its own motion, or
on the motion of the Attorney-General or the Solicitor-
General, or on the motion of any other person with the
consent of the Attorney General. The only course open to a
citizen for initiating proceedings for contempt is to move
for consent of the Attorney General or the Solicitor
General. The question is, does it cast a duty upon the
Attorney General or the Solicitor General to consent to
application for grant of such consent and whether the
granting or non-granting of such consent is justiciable by
the Court and if so whether the question of non-granting can
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be brought up in a rolled application moved by a person to
bring it to the notice of the Court to take action suo motu
and at the same time to consider whether in the same
proceedings the action of the Attorney General or the
Solicitor General in granting or not granting consent can be
challenged or it must be always by an independent
proceeding. The consent certainly is linked up with
552
contempt proceedings. In this case, the Minister had taken
the plea that consideration of this case could not be taken
up because there was no consent of the law officers. Did it
or did it not tend to interfere with the due course of
judicial proceedings in terms of clause (ii) of section 3(c)
of the Act? The Attorney General and the Solicitor General,
in respect of this Court, occupy positions of great
importance and relevance. The Attorney General is a friend,
philosopher, and guide of the Court (Article 76 of the
Constitution). Yet, the Act, vests him with certain
discretions. All statutory discretions are justiciable in a
society governed by the rule of law. This Court is the
finder and interpreter of law in cases of this nature with
the assistance of Attorney General, and, in his absence or
inability, the Solicitor General. [577C-H; 578A-C]
The petitioner in this case had approached the Attorney
General and the Solicitor General to look into the matter
and accord sanction. The conduct of the respondents Nos. 2
and 3 according to the petitioner, amounted to refusal to
exercise jurisdiction vested in them by law, and, therefore,
they were impleaded as parties in the present proceedings
(as necessary and/or proper parties) in order that they
might get an opportunity to justify the stand they had taken
in the matter flowing fr m their refusal to exercise
jurisdiction. [580E-G]
The question is whether there is a duty cast upon the
Attorney General or the Solicitor General to consider the
question of granting consent in terms of clause (b) of
section 15(1) of the Act, and if in fact such consent is not
granted, that question can be considered by the Court. It
was not a question of making the Attorney General or the
Solicitor General a party to a contempt proceeding in the
sense that they were liable for contempt, but if the hearing
of the contempt proceedings is better proceeded with by
obtaining the consent of the Attorney General or the
Solicitor General and the question of justiciability of
giving the consent is inter-linked on the analogy of order
II, Rule I of the Code of Civil Procedure, which has
application to a civil proceeding and not to a criminal
proceeding, it is permissible to go into this question. In
the case of Conscientious Group v. Mohammed Yunus and
others, [1987] 3 S.C.C. 89, this Court went into the reasons
given by the Solicitor General declining consent, and held
on examination that such consent was properly refused. This
is a complete answer to the contention that in a contempt
petition the grounds for either giving consent or not giving
consent or for not considering the application for consent
are justiciable and that question cannot be gone into in
that proceeding though it must be emphasised in that
proceeding that 11 the Solicitor General was not made a
party to the proceeding. In his
553
Lordship’s opinion, it will be more appropriate for an
officer of the Court whose action is being investigated to
be made a party in the proceedings, otherwise it would be
violative of the rule of audi alteram partem. Discretion
vested in the law officers of this Court to be used for a
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public purpose in a society governed by rule of law is
justiciable. It would be more appropriate that it should be
gone into upon notice to the law officer concerned. It is a
case where appropriate ground for refusal to act can be
looked into by the Court. It cannot be said that the refusal
to grant consent decides no right and it is not reviewable.
Refusal to give consent closes one channel of initiation of
contempt out of the three different channels, namely, (1)
the Court taking cognizance on its own motion; (2) on the
motion by the Attorney General or the Solicitor General; and
(3) by any other person with the consent in writing of the
Attorney General or the Solicitor General. In this case,
apparently the Attorney General and the Solicitor General
had not moved on their own. The petitioner could not move in
accordance with law without the consent of the Attorney
General and the Solicitor General, though he has a right to
move and the third is the Court taking notice suo motu. But
irrespective of that there was the right granted to the
citizen of the country to move a motion with the consent.
Indubitably, cognizance could be taken suo motu by the Court
but the members of the public have also the right to move
the Court. That right of bringing to the notice of the Court
is dependent upon consent being given either by the Attorney
General or the Solicitor General, and if that consent is
withheld without reasons or without consideration of that
right granted to any other person under section 15 of the
Act, that could be investigated in an application made to
the Court. [581B-H; 582A-C; 584C-D]
Where an appeal comes to this Court, which is a
judicial decision, the judges who rendered the decision are
not necessary parties. There is no lis between a suitor and
a judge in a judicial adjudication. But the position is
entirely different where there is a suitor claiming the
exercise of a statutory right in his favour which he alleges
is hampered by an official act of a named official in the
Act. In respect of justiciability of that act of the
official there is a lis and if that lis is inter-linked with
the proceeding for contempt, there is warrant for making him
party in that proceeding though the prayers and the notice
must be issued differently. The statute gives a right to a
suitor to move the Court in one of the contingencies for
contempt or bring to the notice of the Court the contempt
with the advice and assistance of the Attorney General or
the Solicitor General. If such right is not considered on
relevant materials, then, that action is justiciable in the
appropriate proceeding for contempt. [585C-G]
554
Having considered the peculiar facts and circumstances
of this A case and the allegations of bias made against the
Attorney general and the Solicitor General, it appeared that
the Attorney General and the Solicitor General acted
properly in declining to deal with the matter and the Court
could deal with the matter on attention being drawn to this
Court. In that view of the matter, the petition failed and
the application of Shri Trivedi was accordingly disposed of.
[588D-E]
Per S. Ranganathan, J. (Concurring)
The impugned comments were made by the respondent No. 1
in the course of his key note address at a seminar on
’Accountability of the Legislature, Executive and Judiciary
under the Constitution of India’. The speech, and, in
particular, some ’sevoury’ passages therefrom were
highlighted in the Press. The speech had been made before an
audience comprising essentially lawyers, Jurists and Judges.
It represented primarily an exercise by the speaker to
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evaluate the roles of the executive, legislature and
judiciary in the country since its independence and to put
forward the theory that, like the executive and the
legislature, the judiciary must also be accountable to the
people. [588F-H; 589A]
The petitioner contended that certain passages in the
speech seemed to attribute a sub-conscious partiality, bias
or predeliction in the Judges in disposing of various
matters before them and that those comments fell within the
scope of the decision of this Court in the case of E.M.
Sankaran Namboodripad v. T. Narayanan Nambiar, [1970] 2 SCC
325. [589A-B]
It was true, as pointed out by Sabyasachi Mukharji, J.
that there were passages in the speech which torn out of
context might be liable to be misunderstood, but reading the
speech as a whole and bearing in mind the select audience to
which it was addressed, his Lordship agreed with Sabyasachi
Mukharji, J., that no contempt had been committed. The
affidavit of the respondent No. 1 should be accepted at its
face value that the speech was only a theoretical
dissertation and that he intended no disrespect to this
Court or its functioning. [589D-E]
The second aspect of the case on which arguments were
addressed before the Court, related to the procedure to be
followed in such matters. This aspect raised some important
issues. [589E-F]
The criminal miscellaneous petition filed by the
petitioner purported to be only "information" u/s 15 (1)(a)
and (b) of the
555
Contempt of Courts Act, 1971 (’the Act’). The petitioner
stated that he came to know from a report in the newspaper
that the respondent No. 1, in the course of his speech, had
made certain statements which randered him liable to be
proceeded against for contempt of court, and, appending what
was stated to be a full text of the said speech published in
the "Newstime", prayed for initiation of contempt of court
proceedings suo motu under s. 15(1) of the Contempt of
Courts Act, 1971, read with rule 3(a) of the Supreme Court
(Contempt of Court) Rules, 1975. Though the respondent No. 1
only, according to the petitioner, was to be charged with
contempt, the petitioner had added three more respondents to
the criminal miscellaneous petition, namely, the Attorney
General for India (by name), the Solicitor General of India
(by name) and Sri Ramji Rao, Editor of "Newstime". The
petition raised certain questions of general importance for
consideration to evolve a proper procedure for future
guidance in these matters. [589F-H; 590A-B]
The petitioner sought to charge respondent No. 1 with
"Criminal Contempt" under Section 15 of the Contempt of
Courts Act, 1971.
A conjoint perusal of the Act and the rules of the
Supreme Court to regulate proceedings for Contempt of
Supreme Court makes it clear that so far as this Court is
concerned, action for contempt may be taken by the Court on
its own motion or on the motion of the Attorney General (or
the Solicitor General) or of any other person with his
consent in writing. There is no difficulty where the Court
or the Attorney General chooses to move in the matter. When
a private person desires that such action should be taken,
he may place the information in his possession before the
Court, requesting the Court to take action; or he may place
the information before the Attorney General requesting him
to take action; or he may place the information before the
Attorney General requesting him to permit him to move the
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Court. In this case, the petitioner alleged that he had
failed in the letter two courses, and he had moved this
’petition’ praying that this Court should take suo motu
action. On this ’petition’, no proceedings could commence
until and unless the Court considered the information before
it and decided to initiate proceedings. [592F-H;593A-B
The form of a criminal miscellaneous petition styling
the informant as the petitioner and certain persons as
respondents is inappropriate for merely lodging the relevant
information before the Court under rule 3(a) of the Supreme
Court (Contempt of Court) Rules. The proper title of such a
proceeding should be "In re .. (the alleged contempt)". The
direction given by the Delhi High Court in
556
Anil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1 that "
........ if any information is lodged even in the form of a
petition inviting this Court to take action u/s 15 of the
Contempt of Courts Act or Article 212 of the Constitution,
where the informant is not one of the persons named in
section 15 of the said Act, it should not be styled as a
petition and should not be placed before the judicial side.
Such a petition should be placed before the Chief Justice
for orders m chambers and the Chief Justice may decide
either by himself or in consultation with the other judges
of the Court whether to take any cognizance of the
information ........ " sets out the proper procedure in such
cases and may be adopted in future as a practice direction
or as a rule, by this Court and the High Court. However,
this petition having been filed and similar petitions having
been perhaps entertained earlier in several courts, his
Lordship did not suggest that this petition should be
dismissed on this ground. [593C-H; 594A-B]
In this case, apart from filing his information in the
form of a petition, the petitioner had added as respondents
to the petition not only the alleged contemner but three
more persons i.e. the Attorney General, the Solicitor
General and Shri Ramoji Rao, Editor of "Newstime". The
Attorney General and Solicitor General were stated to be
impleaded in order that they might get an opportunity to
justify their stand in refusing to exercise their
jurisdiction to grant consent to him to enable him to file a
petition under section 15(1) read with rule 3(c), and the
fourth respondent was only a possible witness, stated to be
impleaded only to prove the authenticity of the speech
reported in the "Newstime" in the event of a disclaimer of
the respondent No. 1. This could not be done. This petition,
as filed, was for initiating proceeding for contempt only
against respondent No. 1. If the petitioner had any cause of
action against the other persons, such persons were neither
necessary nor even proper parties to this petition, because
such cause of action was of a purely civil nature. At best,
the petitioner could say that he was entitled to a writ of
mandamus directing the Attorney General and Solicitor
General to discharge their statutory obligation or a writ of
certiorari to quash their decision in case they had
unreasonably withheld their consent to the petitioner’s
filing a petition. This remedy was to be sought
independently against these persons by a separate writ
petition. He could not seek relief against the Attorney
General and the Solicitor General by a petition mixing up
his criminal charge against respondent No. 1 and his civil
grievance against the Attorney General and the Solicitor
General. He could not get over the objection to the
maintainability of a petition, i.e. want of cousent of the
Attorney General or the Solicitor General, merely by the
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device of adding them as respondents
557
to the petition; no relief was sought against the Attorney
or the Solicitor A General. This petition, if treated as one
under rule 3(c) was not maintainable for want of consent by
the Attorney General and the Solicitor General and had to be
dismissed as such. The inclusion of respondents 2 to 4 as
respondents to the petition was totally unjustified, and if
the petition was to be taken as merely laying of information
under rule 3(a), the names of respondents 2 to 4 must be
struck off from the array of parties. His Lordship directed
accordingly. Notice of the petition should not have been
issued in the form it was issued, to the Attorney General
and the Solicitor General since there was no allegation of
contempt and no relief had been sought against them. [594B-
H; 595A-D]
The petitioner had submitted that the Attorney General
and the Solicitor General had acted unreasonably in
declining to act in this case. In addition to merely placing
the information with him before the Attorney
General/Solicitor General and seeking their consent to his
filing a petition before the Court, he had written a letter
containing a lot of irrelevant matter, whereby while
purporting to seek the consent of the Attorney General
Solicitor General, he had simultaneously expressed his lack
of confidence in their judgment and ability to discharge
their duties objectively and impartially. In this situation,
the Attorney General/Solicitor General decided not to
exercise their statutory powers at all one way or the other.
the Attorney General/Solicitor General acted rightly and in
the best traditions of their office by declining to deal
with the petitioner’s request. The petitioner had cast
aspersions against both the law officers, doubting their
ability to act objectively and this stultified by his
conduct this course indicated by the Statute. [598G-H; 599A-
C,F]
As to the question whether, in a case where neither the
Attorney General nor the Solicitor General was in a position
to consider a request under section 15(1)(c), the petitioner
could seek the consent of some other law officers, as the
Additional Solicitor General, it was not open to him to seek
such consent, as under section 15, the written consent of
only those officers as have been specifically authorised by
the section would be taken note of for entertaining a
petition under the section. [599G-H; 600A-B]
Summing up the conclusion-
(a) This petition, if treated as and filed under
section 15(1) read with rule 3(a) was not in proper form,
and if treated as one filed under rules 3(b) and 3(c), was
not maintainable as it was not filed by the
558
Attorney General/Solicitor General or any other person with
his consent; [600C]
(b) In either event, the petitioner should not have
added to the petition respondents other than the person,
alleged to be guilty of Contempt of Court, and their names
should be deleted from the array of the Parties; [600D]
(c) In case the Attorney General/Solicitor General
refuse consent or decline to act, their decision is not
judicially reviewable and a petitioner’s remedy is to
approach the Court for action under rule 3(a); [600E]
(d) In this case, the Attorney General/Solicitor
General acted properly in declining to deal with the
petitioner’s application either way, and [600F]
(e) This petition was nothing more than information
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under rule 3(a) on which this Court might or might not take
suo motu action and there was no need to initiate proceeding
against the respondent No. I for Contempt of Court. [600F-G]
Ambard v. Attorney General for Trinidad and Tobago,
[1936] A.C. 322, 325; E.M. Sankaran Namboodiripad v. T.
Narayanan Nambiar, [1971] 1 SCR 697-(1970) 2 SCC 325; Joseph
Loohner v. People of the State of New York, 49 Lawyers’
Edition 195-198 U.S. 1904; Re: Shri S. Mulgaokar, [1978] SCR
162; New York Times Company v. L.B. Sullivan, 376 U.S. 254;
Regina v. Commissioner of Police of the Metropolis, Ex Parte
Blackburn, [1968] 2 W.L.R. 1204; Special Reference No. I of
1964, [1965] 1 S.C.R. 413; Shri Baradakanta Mishra v. The
Registrar of Orissa High Court and another, [1974] 1 SCC
374; Ram Dayal Markarha v. State of Madhya Pradesh, [1978] 3
SCR 497; Conscientious Group v. Mohammed Yunus and others,
[1987] 3 SCC 89 J.T. 1987 (2) 377; National Anthem case,
[1986] 3 SCC 615; Vassiliades v. Vassiliades and others, AIR
1945 P.C. 38; S.K. Sarkar v. V.C. Misra, [1981] 2 SCR 331;
C.K. Daphtary and others v. O.P. Gupta, and another, [1971]
Suppl. S.C.R. 76; G.N. Verma v. Hargovind Dayal and others,
AIR 1975 Allahabad 52; B. K. Kar v. The Chief Justice and
his Companion Judges of the Orissa High Court and others,
[1962] 1 SCR 319; Attorney General v. Iyimes Newspapers
Ltd., [1973] 3 All. E.R. 54; Indian Express Newspapers
(Bombay) Pvt. Ltd. and others etc. v. Union of India &
others, [1985] 1 SCC 641; Gouriet and others v. H.M.
Attorney General, [1978] Appeal Cases 435; Gouriet v. Union
of Post office Workers, [1978] Appeal cases 435;
559
Gouriet v. Union of Post offices Workers & Ors., [1977] 1
Q.B. 729 to 752; Rajagopal v. Murtza Mutjahdi, [1974] 1
Andhra Law Times 170; N. Venkataramanappa v. D.K. Naikar,
A.I.R. 1978 Karnataka 57; Anil Kumar Gupta v. K. Subba Rao,
ILR 1974 Delhi 1 and A.G. v. Times Newspapers, [1974] AC
277, referred to.

JUDGMENT:
CRIMINAL ORIGINAL JURISDICTION: Criminal Miscellaneous
Petition No. 260 Of 1988.
Under Section 15(1)(a) and (b) of the Contempt of
Courts Act,1971 read with its explanation (1) and Rule
(3)(a), (b) and (c) of Contempt of Supreme Court Rules,
1965.
Randhir Jain for the Petitioner.
B. Datta, Additional Solicitor General, Dr. Y.S.
Chitale, A.K. Ganguli, N. Nettar, G.S. Narayan, Gopal
Subramanian, Mukul Mudgal, P.H. Parekh, Sanjay Bharthari and
R K. Joshi for the Respondents.
The following Judgments of the Court were delivered:
SABYASACHI MUKHARJI, J. By an order dated 15th March,
1988 we declined in this matter to initiate contempt
proceedings under section 15(1) (a) and (b) of the Contempt
of Courts Act, 1971 (hereinafter called ’the Act’) read with
rule 3(a), (b) and (c) of the Supreme Court Contempt of
Court Rules, 1975. We also on that date disposed of the
application for intervention filed by Shri R.N. Trivedi. We
stated that we will indicate our reasons by a separate
judgment. We do so herein
Shri P. Shiv Shankar who at the relevant time was the
Hon’ble Minister for Law, Justice and Company Affairs
delivered a speech before a meeting of the Bar Council of
Hyderabad on 28th November, 1987. Shri P.N. Duda, who is an
advocate practising in the Supreme Court, has drawn our
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attention to that speech. According to him, by that speech
respondent No. 1, Shri P. Shiv Shankar has made statements
against the Supreme Court which are derogatory to the
dignity of this Court, attributing this Court with
partiality towards economically affluent sections of the
people and has used language which is extremely intemperate,
undignified, and unbecoming of a person of his stature and
position It was stated that Shri P. Shiv Shankar formerly
held the office of a Judge of the High Court before he
resigned and took to politics.
560
We have read the entire speech. It is not necessary to
set out the A entire speech. The relevant portions of the
said speech for the present purpose are as follows:
"(a) The Supreme Court composed of the element
from the elite class had their unconcealed
sympathy for the haves i.e. the Zamindars. As a
result, they interpreted the word ’compensation’
in Article 31 contrary to the spirit and the
intendment of the Constitution and ruled the
compensation must represent the price which a
willing seller is prepared to accept from a
willing buyer The entire programme of Zamindari
abolition suffered a setback. The Constitution had
to be amended by the 1st, 14th and 17th Amendments
to remove this oligarchic approach of the Supreme
Court with little or no help. Ultimately, this
rigid reactionary and traditional outlook of
property, led to the abolition of property as a
fundamental right."
He inter alia further observed:
"(b) Holmes Alexander in his column entitled ’9
Men of Terror Squad’ made a frontal attack on the
functions of the U.S. Supreme Court. It makes an
interesting reading:
’Now can you tell what that black-robed elite
are going to do next. Spring more criminals,
abolish more protections. Throw down more
ultras. Rewrite more laws. Chew more clauses
out of the Constitution. May be, as a former
Vice-President once said, the American people
are too dumb to understand, but I would bet
that the outcropping of evidence at the top
in testimony before the US Senate says
something about the swelling concern among
the people themselves.’
Should we not ask how true Holmes Alexander
was in the Indian context."
The Minister further stated:
"(c) Twenty years of valuable time was lost in
this confrontation presented by the Judiciary in
introducing and implementing basic agrarian
reforms for removal of poverty
561
what is the ultimate result. Meanwhile even the
political will seems to have given way and the
resultant effect is the improper and ineffective
implementation of the land reform laws by the
Executive and the Judiciary supplimenting and
complementing each other."
It was further stated by him:
"(d) The Maharajas and the Rajas were
anachronistic in independent India. They had to be
removed and yet the conservative element in the
ruling party gave them privy purses. When the
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privy purses were abolished, the Supreme Court,
contrary to the whole national upsurge, held in
favour of the Maharajas".
"(e) Madhadhipatis like Keshavananda and Zamindars
like Golaknath evoked a sympathetic cord nowhere
in the whole country except the Supreme Court of
India. And the bank magnates, the representatives
of the elitist culture of this country, ably
supported by industrialists, the beneficiaries of
independence, got higher compensation by the
intervention of the Supreme Court in Cooper’s
case. Antisocial elements i.e. FERA violators,
bride burners and a whole horde of reactionaries
have found their heaven in the Supreme Court."
Shri P.N. Duda brought the newspaper version of the
said speech to our notice. He further stated that the said
speech contains slander which was cast on this Court, both
in respect of the Judges and its working. It was alleged
that Shri P. Shiv Shankar has done this to malign this
Court. Shri Duda further stated that he read the speech in
the News Times and he had approached the learned Attorney
General of India and the learned Solicitor General of India
to give their consent for initiating contempt proceedings.
In those circumstances, the petitioner claimed that he also
made the Editor and Publisher of the newspaper-News Times as
one of the respondents. The learned Attorney General and the
learned Solicitor General have declined to deal with this
prayer of the petitioner for the reasons stated in the
letter which is an annexure to this petition. We shall refer
to that part of the letter later. In those circumstances an
application for initiation of contempt entitled "Information
under Section 15(1)(a) and (b) of the Act read with
Explanation (19 and Rule 3(a), (b) and (c) of Contempt of
Supreme Court Rules, 1975" in the matter of said Shri
562
P.N. Duda was made wherein Shri P. Shiv Shankar, the learned
A Attorney General, the learned Solicitor General and the
Editor of News Times were made parties. The application
having been moved before this Court on 10th February, 1988
we directed issue of notice returnable on 15th March, 1988
to the respondents, namely, Shri P. Shiv Shankar, Shri K.
Parasaran, Shri Milon Banerji and Shri Ramji Rao, Editor,
News Times confined only to the question to consider whether
action, if any, need be taken on the said petition of the
petitioner. We requested the First Additional Solicitor
General, Shri B. Datta to appear as Amicus Curiae to assist
the Court. On 11th February, 1988 Shri Duda mentioned the
matter and this Court clarified that the respondents need
not appear in the first instance in person. In the meantime,
pursuant to the notice Shri P. Shiv Shankar has filed an
affidavit on 8th March, 1988 in which he has stated that he
had delivered a speech on the Silver Jubilee Celebration of
the Bar Council of Andhra Pradesh at Hyderabad where the
audience consisted of Judges and lawyers. On that occasion
he had made a speech on the subject of accountability of the
Legislature, the Executive and the Judiciary. He further
stated that during the speech, he made comments on the
accountability of the three organs and theoretical
implications thereof. The Minister has further reiterated
with utmost emphasis at his command that he intended no
disrespect to any of the institutions or its functionaries
much less this Hon’ble Court. He further stated that he has
high regard for this Hon’ble Court. He further stated that
the contempt petition is not maintainable in law without the
consent of the Attorney General or the Solicitor General and
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it was liable to be dismissed. In the Meantime an
application has been filed by Shri R.N. Trivedi who is an
advocate of 25 years’ standing at the Bar in which he has
claimed the right to be impleaded as a party. He has stated
in the petition that the learned Attorney General and the
Solicitor General should not have been made parties to the
contempt petition and the alleged non-exercise of
jurisdiction by the Attorney General and the Solicitor
General did not constitute contempt within the meaning of
section 2(c) of the Act. The remedy, if any, in respect of
the alleged non-exercise of jurisdiction and power would lie
somewhere else, according to Shri Trivedi. Shri B. Datta at
our request appeared as Amicus Curiae and made his
submissions. We express our gratitude to him.
Before deciding the question whether this application
was maintainable without the consent of the Attorney General
or the Solicitor General as contended by Dr. Chitale on
behalf of Shri Shiv Shanker and the question whether the
Attorney General and the Solicitor
563
General could be made parties to the contempt application
and whether their action or inaction was justiciable at all
in any proceeding and if so in what proceedings, it is
necessary to decide the basic question whether the speech
made by Shri P. Shiv Shankar and published throughout the
length and breadth of the country amounted to contempt of
this Court, or in other words, whether the speech has the
effect of bringing this Court into disrepute.
"Justice is not a cloistered virtue. she must be
allowed to suffer the scrutiny and respectful, even though
outspoken, comments of ordinary men." - said Lord Atkin in
Ambard v. Attorney-General for Trinidad and Tobago, [1936]
A.C. 322 at 335. Administration of justice and Judges are
open to public criticism and public scrutiny. Judges have
their accountability to the society and their accountability
must be judged by their conscience and oath of their office,
that is, to defend and uphold the Constitution and the laws
without fear and favour. This the Judges must do in the
light given to them to determine what is right. And again as
has been said in the famous speech of Abraham Lincoln in
1865 "With malice towards none, with charity for all, we
must strive to do the right, in the light given to us to
determine that right." Any criticism about the judicial
system or the Judges which hampers the administration of
justice or which erodes the faith in the objective approach
of Judges and brings administration of justice into ridicule
must be prevented. The Contempt of Court proceedings arise
out of that attempt. Judgment can be criticised; the motives
of the Judges need not be attributed, it brings the
administration of justice into deep disrepute. Faith in the
administration of justice is one of the pillars through
which democratic institution functions and sustains. In the
free market place of ideas criticisms about the judicial
system or Judges should be welcomed, so long as such
criticisms do not impair or hamper the administration of
justice. This is how Courts should approach the powers
vested in them as Judges to punish a person for an alleged
contempt, be it by taking notice of the matter suo motu or
at the behest of the litigant or a lawyer.
In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar,
[1971] I S.C.R. 697, this Court had to deal with this
jurisdiction in respect of Mr. Namboodiripad who at the
relevant time was the Chief Minister of Kerala. He had held
a press conference in November, 1976 and made various
critical remarks relating to the judiciary which inter alia
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was described by him as "an instrument of oppression" and
the Judges as "dominated by class hatred, class prejudices",
"instinctively" favouring the rich against the poor. He also
stated that as part of
564
the ruling classes the judiciary "works against workers,
peasants and A other sections of the working classes" and
"the law and the system of judiciary essentially served the
exploiting classes" (emphasis supplied) It was found that
these remarks were reported in the newspapers and thereafter
proceedings commenced in the High Court of Kerala. The
appellant Shri Namboodiripad was called upon to show cause
why he should not be committed for contempt. In his
affidavit the appellant stated that the reports were
"substantially correct", though incomplete in some respects.
The appellant further claimed that his observations did no
more than give expression to the Marxist Philosophy and what
was contained in the programme of the Communist Party of
India. By a majority judgment of the High Court the
appellant was convicted for contempt of court and fined Rs.
1000 or simple imprisonment for one month. He moved this
Court by an appeal. He contended that the law of contempt
must be read without encroaching upon the guarantee of
freedom of speech and expression under Article 19(1)(a) of
the Constitution and that the intention of the appellant in
making his remarks at the press conference should be
examined in the light of his political views which he was at
liberty to put before the people. He sought to justify the
remarks as an exposition of his ideology which he claimed
was based on the teachigs of Marx and Engels and on this
ground claimed protection of the first clause of Article
19(1) of the Constitution. The conviction of the appellant
was upheld by this Court. It was observed by Hidayatullah,
C.J speaking for the Court that the law punishes not only
acts which do not in fact interfere with the courts and
administration of justice but also those which have that
tendency, that is to say, are likely to produce a particular
result. Judged from the angle of courts and administration
of justice, there was no doubt that the appellant was guilty
of contempt of court. The Chief Justice observed whether the
appellant misunderstood the teachings of Marx and Engels or
deliberately distorted them was not to mush purpose. The
likely effect of his words must be seen and they clearly had
the effect of lowering the prestige of judges and courts in
the eyes of the people. (emphasis supplied) That he did not
intend any such result may be a matter for consideration in
the sentence to be imposed on him but could not serve as a
justification. This Court further held that the appellant
had misguided himself about the true teachings of Marx,
Engles and Lenin. According to the Chief Justice he had
misunderstood the attack by them on State and the laws as
involving an attack on the Judiciary. No doubt the courts,
while upholding the laws and enforcing them, do give support
to the State but they do not do so out of any impure
motives. To charge the Judiciary as an instrument of
oppression, the Judges as guided and dominated by class
hatred, class
565
interests and class prejudices, instinctively favouring the
rich against the poor is to draw a very distorted and poor
picture of the Judiciary. It A was clear that the appellant
bore an attack upon judges which was calculated to raise in
the minds of the people a general dissatisfaction with and
distrust of all judicial decisions. According to the Chief
Justice it weakened the authority of law and law courts
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(emphasis supplied). It was further held that while the
spirit underlying Article 19(1)(a), must have due play, the
Court could not overlook the provisions of the second clause
of that Article. Its provisions are to be read with Articles
129 and 215 which specially confer on this Court and the
High Courts the power to punish for contempt of themselves.
Although Article 19(1)(a) guaranteed complete freedom of
speech and expression, it also made an exception in respect
of contempt of court. While the right is essential to a free
society, the Constitution had itself imposed restrictions in
relation to contempt of court and it could not therefore be
said that the right abolished the law of contempt or that
attack upon judges and courts would be condoned. We are not
concerned here whether the appellant in that case properly
understood the communist manifesto or the views of the Marx,
Engles and Lenin. While respectfully accepting the ratio and
the observations of the learned Chief Justice made in that
decision we must recognise that times and clime have changed
in the last two decades. There have been tremendous erosions
of many values. In this connection it is interesting to note
that little over sixty years ago, on 1st March, 1928,
Justice Holmes wrote to Prof. Harold Laski " . . .You amaze
me by saying, if I understand you, that criticism of an
opinion or judgment after it has been rendered, may make a
man liable for contempt. I thought that notion was left for
some of our middle western states. I must try to get the
book and the decision .. " (Holmes-Laski Letters Vol. I
1916-1925 Page 1032).
In the instant case we have examined the entire speech.
In the speech Shri P. Shiv Shankar has examined the class
composition of the Supreme Court. His view was that the
class composition of any instrument indicates its pre-
disposition, its prejudices. This is inevitable. Justice
Holmes in his dissenting opinion in Joseph Lochner v. People
of the State of New York, 49 Lawyers’ Edition 195-198 U.S.
1904 had observed "General propositions do not decide
concrete cases. The decision will depend on a judgment or
intuition more subtle than any articulate major premise."
That intuition more subtle than major premise is the pride
and the prejudice of a human instrument of a Judge through
which objectively the Judge seeks to administer justice
according to law. So, therefore, in a study of
accountability if class
566
composition of the people manning the institution is
analysed we forewarn ourselves of certain inclination it
cannot be said that an expression or view or propagation of
that view hampers the dignity of the Courts or impairs the
administration of justice.
The question of contempt of court by newspaper article
criticising the Judges of the Court came up for
consideration in the case of Re: Shri S. Mulgaokar, [1978] 3
S.C.R. 162. In order to appreciate the controversy in this
case it has to be stated that the issue dated 13th December,
1977, of the Indian Express published a news item that the
High Courts had reacted very strongly to the suggestion of
introducing a code of judicial ethics and propriety and that
"so adverse has been the criticism that the Supreme Court
Judges, some of whom had prepared the draft code, have
disowned it". In its issue dated December 21, 1977 an
article entitled "behaving like a Judge" was published which
inter alia stated that the Supreme Court of India was
"packed" by Mrs. Indira Gandhi "with pliant and submissive
judges except for a few". It was further stated that the
suggestion that a code of ethics should be formulated by
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Judges themselves was "so utterly inimical to the
independence of the judiciary, violative of the
Constitutional safeguards in that respect and offensive to
the self-respect of the Judges as to make one wonder how it
was conceived in the first place". A notice had been issued
to the Editor-in-Chief of the Newspaper to showcause why
proceedings for contempt under Article 129 of the
Constitution should not be initiated against him in respect
of the above two news items
It was observed by Chief Justice Beg in that decision
that national interest required that all criticisms of the
judiciary must be strictly rational and sober and proceed
from the highest motives without being coloured by any
partisan spirit or tactics. This should be apart of national
ethics. The comments about Judges of the Supreme Court
suggesting that they lack moral courage to the extent of
having "disowned" what they had done or in other words, to
the extent of uttering what was untrue, at least verge on
contempt. None could say that such suggestions would not
make Judges of this Court look ridiculous or even unworthy,
in the estimation of the public, of the very high office
they hold if they could so easily "disown" what they had
done after having really done it. It was reiterated that the
judiciary can not be immune from criticism. But, when that
criticism was based on obvious distortion or gross mis-
statement and made in a manner which seems designed to lower
respect for the judiciary and destroy public confidence in
it, it could not be ignored. A decision on the
567
question whether the discretion to take action for Contempt
of Court should be exercised must depend on the totality of
facts and circumstances of the case. The Chief Justice
agreed with the other two learned Judges in that decision
that in those facts the proceedings should be dropped.
Krishna Iyer, J. in his judgment observed that the Court
should act with seriousness and severity where justice is
jeopardised by a gross and/or unfounded attack on the
Judges, where the attack was calculated to obstruct or
destroy the judicial process. The Court must harmonise the
constitutional values of free criticism, and the need for a
fearless curial process and its presiding functionary, the
judge. To criticise a judge fairly albeit fiercely, is no
crime but a necessary right. Where freedom of expression
subserves public interest in reasonable measure, public
justice cannot gag it or manacle it. The Court must avoid
confusion between personal protection of a libelled judge
and prevention of obstruction of public justice and the
community’s confidence in that great process. The former is
not contempt but latter is, although overlapping spaces
abound. The fourth functional canon is that the Fourth
Estate should be given free play within responsible limits
even when the focus of its critical attention is the court,
including the highest court. The fifth normative guideline
for the Judges to observe is not to be hypersensitive even
where distortions and criticisms overstep the limits, but to
deflate vulgar denunciation by dignified bearing, and the
sixth consideration is that if the Court considers the
attack on the judge or judges scurrilous, offensive,
intimidatory or malicious beyond condonable limits, the
strong arm of the law must strike a blow on him who
challenges the supremacy of the rule of law by fouling its
sources and stream.
It is well to remember the observations of Justice
Brennan of U.S. Supreme Court (though made in the context of
law of libel) in New York Times Company v. L.B. Sullivan,
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376 U.S. 254 that it is a prized privilege to speak one’s
mind, although not always with perfect good taste, on all
public institutions and this opportunity should be afforded
for vigorous advocacy no less than abstract discussion.
Lord Denning in Regina v. Commissioner of Police of the
Metropolis, Ex parte Blackburn, [1968] 2 W.L.R. 1204
observed as follows.
"Let me say at once that we will never use this
jurisdiction as a means to uphold our own dignity.
That must rest on surer foundations. Nor will we
use it to suppress those who speak against us. We
do not fear criticism, nor do we resent
568
it. For there is something far more important at
stake. It is no less than freedom of speech
itself.
It is the right of every man, in Parliament or out
of it, in the Press or over the broadcast, to make
fair comment, even outspoken comment on matters of
public interest. Those who comment can deal
faithfully with all that is done in a court of
justice. They can say that we are mistaken, and
our decisions erroneous, whether they are subject
to appeal or not. All we would ask is that those
who criticise us will remember that, from the
nature of our office, we cannot reply to their
criticisms. We cannot enter into public con-
troversy. Still less into political controversy.
We must rely on our conduct itself to be its own
vindication.
Exposed as we are to the winds of criticism,
nothing which is said by this person or that,
nothing which is written by this pen or that, will
deter us from doing what we believe is right; nor,
I would add, from saying what the occasion
requires, provided that it is pertinent to the
matter in hand. Silence is not an option when
things are ill done."
The aforesaid observations were made in respect of an
article written by Mr. Quintin Hogg in "Punch" (as later
Lord Hailsham then was) more or less in a critical language
as the Hon’ble Minister’s speech in the instant case.
Gajendragadkar, C.J. in Special Reference No. 1 of
1964, [1965] 1 SCR 413 observed as follows:
"We ought never to forget that the power to
punish for contempt, large as it is, must always
be exercised cautiously, wisely and with
circumspection. Frequent or indiscriminate use of
this power in anger or irritation would not help
to sustain the dignity or status of the court, but
may sometimes affect it adversely. Wise Judges
never forget that the best way to sustain the
dignity and status of their office is to deserve
respect from the public at large by the quality of
their judgments, the fearlessness, fairness and
objectivity of their approach, and by the
restraint, dignity and decorum which they observe
in their judicial conduct."
It has been well said that if judges decay, the
contempt power
569
will not save them and so the other side of the coin is that
Judges, like Caesar’s wife, must be above suspicion, per
Krishna Iyer, J. in Shri Baradakanta Mishra v. The Registrar
of Orissa High Court and another, [1974] 1 S.C.C. 374. It
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has to be admitted frankly and fairly that there has been
erosion of faith in the dignity of the court and in the
majesty of law and that has been caused not so much by the
scandalising remarks made by politicians or ministers but
the inability of the courts of law to deliver quick and
substantial justice to the needy. Many today suffer from
remedyless evils which courts of justice are incompetent to
deal with. Justice cries in silence for long, far too long.
The procedural wrangle is eroding the faith in our justice
system. It is a criticism which the Judges and lawyers must
make about themselves. We must turn the search light inward.
At the same time we cannot be oblivious of the attempts made
to decry or denigrate the judicial process, if it is
seriously done. This question was examined in Rama Dayal
Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R. 497
where it was held that fair and reasonable criticism of a
judgment which is a public document or which is a public act
of a Judge concerned with administration of justice would
not constitute contempt. In fact such fair and reasonable
criticism must be encouraged because after all no one, much
less Judges, can claim infallibility. Such a criticism may
fairly assert that the judgment is incorrect or an error has
been committed both with regard to law or established facts.
But when it is said that the Judges had a pre-disposition to
convict or deliberately took a turn in discussion of
evidence because he had already made up his mind to convict
the accused, or has a wayward bend of mind, is attributing
motives, lack of dispassionate and objective approach and
analysis and pre-judging of the issues which would bring
administration of justice into ridicule. Criticism of the
Judges would attract greater attention than others and such
criticism sometime interferes with the administration of
justice and that must be judged by the yardstick whether it
brings the administration of justice into a ridicule or
hampers administration of justice. After all it cannot be
denied that pre-disposition or subtle prejudice or
unconscious prejudice or what in Indian language is called
"Sanskar" are inarticulate major premises in decision making
process. That element in the decision making process cannot
be denied, it should be taken note of.
It has to be borne in mind, as has been said by
Benjamin N. Cardozo in "The Nature of the Judicial Process"
at pages 16-17 that the Judge as the interpreter for the
community of its sense of law and order must supply
omissions, correct uncertainties, and harmonize results with
justice through a method of free decision. Courts are to
570
"search for light among the social elements of every kind
that are the A living force behind the facts they deal
with". The power thus put in their hands is great, and
subject, like all power, to abuse; but we are not to flinch
from granting it. In the long run "there is not guaranty of
justice," said Ehrlich, "except the personality of the
judge. Justice Benjamin N. Cardozo further says at page 112
of the said book that judicial process comes then to this,
and little more logic, history, custom and utility, and the
accepted standards of right conduct, are the forces which
singly or in combination shape the progress of the law.
Judges try to see things as objectively as they please.
Nonetheless, we can never see them with any eyes except our
own. Therefore, the perception of a judge is important and
relevant. Judicial process is not only a path of discovery
but a path of creation (Cardozo "the Nature of the Judicial
Process").
President Roosevelt in his message to the Congress of
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the United States on December 8, 1908 stated thus:
"The chief lawmakers in our country may be, and
often are, the judges, because they are the final
seat of authority. Every time they interpret
contract, property, vested rights, due process of
law, liberty, they necessarily enact into law
parts of a system of social philosophy; and as
such interpretation is fundamental, they give
direction to all lawmaking. The decisions of the
courts on economic and social questions depend
upon their economic and social philosophy; and for
the peaceful progress of our people during the
twentieth century we shall owe most to those
judges who hold to a twentieth century economic
and social philosophy and not to a long outgrown
philosophy, which was itself the product of
primitive economic conditions."
Justice Benjamin N. Cardozo says that he remembers when
the statement made aroused a storm of criticism. (Cardozo-
The Nature of the Judicial Process-pages 171-173). It
betrayed ignorance, he said, of the nature of the judicial
process. Justice Benjamin N. Cardozo tells us that the
business of the judge, was to discover objective truth. His
own little individuality, his tiny stock of scattered and
unco-ordinated philosophies, these, with all his weaknesses
and unconscious prejudices, were to be laid aside and
forgotten. According to Cardozo the truth is, however, that
all these inward questionings are born of the hope and
desire to transcend the limitations which hedge our human
nature. According to Cardozo, Roosevelt, who knew men,
571
had no illusions on this score. He was not positing an
ideal. He was not fixing a goal. He was measuring the powers
and the endurance of those A by whom the race was to be run.
It is well to remember the words of Justice Cardozo where he
says as follows:
"I have no quarrel, therefore, with the doctrine
that the judges ought to be in sympathy with the
spirit of their times. Alas! assent to such a
generality does not carry us far upon the road to
truth. In every court there are likely to be as
many estimates of the ’Zeitgeist’ as there are
judges on its bench. Of the power of favour or
prejudice in any sordid or vulgar or evil sense, I
have found no trace, not even the faintest, among
the judges whom I have known. But every day there
is borne in on me a new conviction of the inescap-
able relation between the truth without us and the
truth within. The spirit of the age, as it is
revealed to each of us, is too often only the
spirit of the group in which the accidents of
birth or education or occupation or fellowship
have given us a place. No effort or revolution of
the mind will overthrow utterly and at all times
the empire of these subconscious loyalties. "our
beliefs and opinions," says James Harvey Robinson
(32 Political Science Quarterly 315), "like our
standards of conduct come to us insensibly as
products of our companionship with our fellow men,
not as results of our personal experience and the
inferences we individually make from our own
observations. We are constantly misled by our
extraordinary faculty of ’rationalizing’ -that is,
of devising plausible arguments for accepting what
is imposed upon us by the traditions of the group
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to which we belong. We are adjectly credulous by
nature, and instinctively accept the verdicts of
the group. We are suggestible not merely when
under the spell of an excited mob or a fervent
revival, but we are ever and always listening to
the still small voice of the herd, and are ever
ready to defend and justify its instructions and
warnings, and accept them as the mature results of
our own reasoning. " This was written, not of
judges specially, but of men and women of all
classes. The training of the judge, if coupled
with what is styled the judicial temperament, will
help in some degree to emancipate him from the
suggestive power of individual dislikes and
prepossessions. It will help to broaden the group
to which his subconscious loyalties are due. Never
will these loyalties be utterly extinguished
572
while human nature is what it is. We may wonder
sometimes how from the play of all these forces of
individualism, there can come anything coherent,
anything but chaos and the void. Those are the
moments in which we exaggerate the elements of
difference. In the end there emerges some thing
which has a composite shape and truth and order.
It has been said that "History, like mathematics,
is obliged to assume that eccentricities more or
less balance each other, so that something remains
constant at last" (Henry Adams, "The Degradation
of the Democratic Dogma," pages 291 and 292). The
like is true of the work of courts. The
eccentricities of judges balance one another. One
judge looks at problems from the point of view of
history, another from that of philosophy, another
from that of social utility, one is a formalist,
another a latitudinarian, one is timorous of
change, another dissatisfied with the present; out
of the attrition of diverse minds there is beaten
something which has a constancy and uniformity and
average value greater than its component elements.
The same thing is true of the work of juries. I do
not mean to suggest that the product in either
case does not betray the flaws inherent in its
origin. The flaws are there as in every human
institution. Because they are not only there but
visible, we have faith that they will be
corrected. There is no assurance that the rule of
the majority will be the expression of perfect
reason when embodied in constitution or in
statute. We ought not to expect more of it when
embodied in the judgments of the courts. The tide
rises and falls, but the sands of error crumble.
The work of a judge is in one sense enduring
and in another sense ephemeral. What is good in it
endures. What is erroneous is pretty sure to
perish. The good remains the foundation on which
new structures will be built. The bad will be
rejected and cast off in the laboratory of the
years. Little by little the old doctrine is
undermined. Often the encroachments are so gradual
that their significance is at first obscured.
Finally we discover that the contour of the
landscape has been changed, that the old maps must
be cast aside, and the ground charted anew. The
process, with all its silent yet inevitable power,
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has been described by Mr. Henderson with singular
felicity: "When an adherent of a systematic faith
is brought continuously in touch with
573
influences and exposed to desires inconsistent
with that faith, a process of unconscious
cerebration may take place, by which a growing
store of hostile mental inclinations may
accumulate, strongly motivating action and
decision, but seldom emerging clearly into
consciousness. In the meantime the formulas of the
old faith are retained and repeated by force of
habit, until one day the realization comes that
conduct and sympathies and fundamental desires
have become so inconsistent with the logical
framework that it must be discarded. Then begins
the task of building up and rationalizing a new
faith." (Cardozo- The Nature of the Judicial
Process pages 174-179)
If any-one draws attention to this danger and aspect
and measures an institution by the class content he does not
minimise its dignity or denigrate its authority. Looked in
that perspective though at places little intemperate, the
statement of the Minister in this case cannot be said to
amount to interference with the administration of justice
and as to amount to contempt of court. The Minister’s
statement does not interfere with the administration of
justice. Administration of justice in this country stands on
surer foundation.
J.A.G. Griffith in "The Politics of the Judiciary",
Part I has two interesting passages on the judiciary which
are worth quoting:
"There is one matter which I ought to mention. All
the judges, without exception, are members of the
Athenaeum, and I presume you will wish to be a
member. If so, may I have the pleasure of
proposing you? There is a meeting of the Committee
early next week."
"The most politically influential of the judges,
however, has been the Master of the Rolls, Lord
Denning . . . With his own modest roots he
dismisses the attacks on a classbased judiciary:
The youngsters believe that we come from a narrow
background-it’s all nonsense-they get it from that
man Griffith."
Griffith in his book "The Politics of the Judiciary" at
page 234 has tried to incite the concept of the class
interest of the judges. Judges he says are concerned to
preserve and protect the existing order. This does not mean
that no judges are capable of moving with the times, of
adjusting to changed circumstances. But, according to him,
their func-
574
tion in our society is to do so belatedly. He further says
thus:
"Law and order, the established distribution of
power both public and private, the conventional
and agreed view amongst those who exercise
political and economic power, the fears and
prejudices of the middle and upper classes, these
are the forces which the judges are expected to up
hold and do uphold."
No contempt proceedings were taken in England in
respect of these and one would like to think rightly. Faith
in the administration of justice is not shaken by such
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criticism.
Reference may also be made to the decision of this
Court in Conscientious Group v. Mohammed Yunus and others,
[1987] 3 S.C.C. 89. In that case there was publication in
the Indian Express which carried the news that Mr. Mohammed
Yunus, Chairman, Trade Fair Authority of India said that the
Supreme Court Judge who held that the singing of the
National Anthem was not compulsory had no right to be called
either an Indian or a Judge. The Conscientious Group
approached this Court for contempt alleging that the conduct
of Mr. Mohammed Yunus in making certain adverse comments
about the Judges who delivered the judgment of this Court in
Civil Appeal No. 860 of 1986 National Anthem case (1986 3
S.C.C. 615) constituted criminal contempt and it should be
so dealt with. Notice on this petition was issued. When the
matter subsequently came up before a Bench of three Judges
consisting of Bhagwati, C.J., Oza and K.N. Singh, JJ., the
contemnor filed a reply stating that the petition was not
maintainable inasmuch as the petitioner had not obtained the
consent in writing of the Attorney General as required under
section 15 of the Act. It appears that the petitioner was
directed by the Division Bench to move the Attorney General
for his consent and the petition was adjourned. The Attorney
General on being moved by the petitioner for the grant of
consent replied to the petitioner stating that since he was
himself a party in his capacity as Attorney General in the
National Anthem case, it was not appropriate for him to deal
with the petitioner’s application. When the case later on
came up before the same three Judges Bench on December 12,
1986, the learned Judges directed the withdrawal of the
petition with liberty to the petitioner to refile the
application after obtaining consent of the Attorney General
as soon as the National Anthem case was over. It was further
observed by this Court that everyone is entitled to
criticise the judgment of the court but no one should attack
the Judges who delivered the judgment
575
as that denigrates the judicial institution and in the long
term impairs the democratic process.
Subsequently the petitioner in that case filed Criminal
Miscellaneous Petition No. 5244 of 1986 praying for
recalling the aforesaid order on the ground that at the time
when he applied to the court for withdrawal of the petition
he was not aware that under Rule 3(c) of the Rules framed by
this Court, the contempt petition could be maintained with
the consent of the Solicitor General, if the Attorney
General, for any reason, was not in a position to give
consent to the filing of the petition. He was so allowed.
Thereafter the petitioner approached the Solicitor General.
But the Solicitor General declined to give the consent in
public interest. He gave certain reasons in support of his
conclusion. The Court in the aforesaid decision by
scrutinising reasons was of the opinion that the reasons
stated by the Solicitor General refusing to grant consent
could not be said to be irrelevant and the petition was
dismissed. In dismissing this application this Court
observed at page 93 of the report "No doubt, by the last of
the sentence of the said order, the Bench has also observed
that ’the petitioner will not be without remedy, if the
Solicitor General refuses his consent on any irrelevant
ground’ but this only means that such a refusal can be
called in question before this Court by the petitioner by
appropriate process". In other words, the effect of the
decision is that the reasons given by the Attorney General
or the Solicitor General in giving or not giving his consent
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were justiciable.
As we have mentioned before the speech of the Minister
has to be read in its entirety. In the speech as we have set
out hereinbefore it appears that Shri P. Shiv Shankar was
making a study of the attitude of this Court. In the portion
set out hereinbefore, it was stated that the Supreme Court
was composed of the element from the elite class. Whether it
is factually correct or not is another matter. In our public
life, where the champions of the down-trodden and the
politicians are mostly from the so-called elite class, if
the class composition is analysed, it may reveal interesting
factors as to whether elite class is dominant as the
champions of the oppressed or of social legislations and the
same is the position in the judiciary. But the Minister went
on to say that because the Judges had their ’unconcealed
sympathy for the haves’ interpreted the expression
’compensation’ in the manner they did. The expression
’unconcealed’ is unfortunate. But this is also an expression
of opinion about an institutional pattern. Then the Minister
went on to say that because of this the word ’compensation’
in Article 31 was interpreted contrary to the spirit and the
intendment of the
576
Constitution. The Constitution therefore had to be amended
by the 1st, 14th and 17th Amendments to remove this
’oligarchic’ approach of the Supreme Court with little or no
help. The inter-action of the decisions of this Court and
the Constitutional amendments have been viewed by the
Minister in his speech, but that is nothing new. This by
itself does not affect the administration of justice. On the
other hand, such a study perhaps is important for the
understanding of the evolution of the constitutional
development. The next portion to which reference may be made
where the speaker has referred to Holmes Alexander in his
column entitled ’9 Men of Terror Squad’ making a frontal
attack on the functions of the U.S. Supreme Court. There was
a comparison after making the quotation as we have set out
hereinbefore: "one should ask the question how true Holmes
Alexander was in the Indian context. " This is also a poser
on the performance of the Supreme Court. According to the
speaker twenty years of valuable time was lost in this
confrontation presented by the judiciary in introducing and
implementing basic agrarian reforms for removal of poverty
what is the ultimate result. The nation did not exhibit the
political will to implement the land reform laws. The
removal of the Maharajas and Rajas and privy purses were
criticised because of the view taken by this Court which
according to the speaker was contrary to the whole national
upsurge. This is a study in the historical perspective. Then
he made a reference to the Keshavananda Bharati’s and
Golaknath’s cases and observed that a representative of the
elitist culture of this country, ably supported by
industrialists and beneficiaries of independence, got higher
compensation by the intervention of the Supreme Court in
Cooper’s case. This is also a criticism of the judgment in
R.C. Cooper’s case. Whether that is right or wrong is
another matter, but criticism of judgments is permissible in
a free society. There is, however, one paragraph which
appears to us to be rather intemperate and that is to the
following effect:
"Anti-social elements i.e. FERA violators, bride
burners and a whole horde of reactionaries have
found their heaven in the Supreme Court".
This, of course, if true, is a criticism of the laws.
The Supreme Court as it is bound to do has implemented the
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laws and in implementing the laws, it is a tribute to the
Supreme Court that it has not discriminated between persons
and persons. Criminals are entitled to be judged in
accordance with law. If anti-social elements and criminals
have benefited by decisions of the Supreme Court, the fault
rests with the laws and the loopholes in the legislation.
The Courts are not deterred by such criticisms.
577
Bearing in mind the trend in the law of contempt as
noticed before, as well as some of the decisions noticed by
Krishna Iyer, J. m S. Mulgaokar’s case (supra) the speech of
the Minister read in its proper perspective, did not bring
the administration of justice into disrepute or impair
administration of justice. In some portions of the speech
the language used could have been avoided by the Minister
having the background of being a former Judge of the High
Court. The Minister perhaps could have achieved his purpose
by making his language mild but his facts deadly. With these
observations, it must be held that there was no imminent
danger of interference with the administration of justice,
nor of bringing a institution into disrepute. In that view
it must be held that the Minister was not guilty of contempt
of this Court.
The view we have taken on this aspect of the matter
would have been sufficient to dispose of this petition. But
another question of law of some importance has arisen in
this matter. Under the Act in case of criminal contempt
other than a contempt referred to in section 14 which is not
the facts of this case, namely, a contempt in the fact of
this Court or a High Court, this Court or the High Court may
take action either on its own motion or on a motion made by
the Advocate General which in relation to this Court means
the Attorney General or the Solicitor General or any other
person with the consent of the Attorney General in terms of
section 15 of the Act. Therefore, cognizance for criminal
contempt could be taken by the Court by three methods
namely, on its own motion, or on the motion of the Attorney
General or the Solicitor General or on motion by any other
person with the consent of the Attorney General or the
Solicitor General. Therefore, the only course open to a
citizen for initiating proceedings for contempt where the
Court does not take cognizance on its motion or where the
Attorney General or the Solicitor General does not take
action is to move for consent in writing of the Attorney
General or the Solicitor General. The question is, does it
cast a duty upon the Attorney General or the Solicitor
General to consider application for grant of such consent
and whether the granting or non-granting of such consent is
justiciable by the Court and if so whether the question of
non-granting can be brought up in a rolled application moved
by a person to bring it to the notice of the Court to take
action suo motu and at the same time to consider whether in
the same proceeding the action of the Attorney General or
the Solicitor General in granting or not granting consent
can be challenged or it must be always by an independent
proceeding. The consent certainly is linked up with contempt
proceedings. Indeed Mohammed Yunus’ case (supra) was
578
dismissed because no consent was obtained. In the instant
case the Minister has taken the plea that consideration of
this case cannot be taken because there is no consent of the
law officers. Does it or does it not "tend to interfere with
due course of judicial proceedings" in terms of clause (ii)
of section 3(c) of the Act? If so is it justiciable in these
proceedings? Attorney General and Solicitor General of India
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in respect of this Court occupy positions of great
importance and relevance. Attorney General, though unlike
England is not a member of the Cabinet yet is a friend of
the Court, and in some respects acts as the friend,
philosopher and guide of the Court. (See Art. 76 of the
Constitution). Yet the Act vests him with certain
discretions. All statutory discretions are justiciable in a
society governed by the rule of law. one must remember the
remarks of Thomas Fuller- "Be you ever so high, the law is
above you" and this Court is the finder and interpreter of
that law in cases of this nature with the assistance of
Attorney General and in his absence or inability the
Solicitor General.
It is well to remember what Burke said in the House of
Commons in 1772 in connection with the motion for select
committee for enquiry into the affairs of the East India
Company and Clive. He said that when discretionary power is
lodged in the hands of any man or class of men, experience
proves that it will always be abused. Where no laws exist
men must be arbitrary and very necessary acts of government
will often be, in such cases, represented by the interested
and malevolent as instances of wanton oppression (Clive of
India - Nirad C. Chaudhry, page 381). Times have changed
here, the discretion is vested on a very high dignitary and
a friend of the Court, yet it is subject to scrutiny.
On this aspect it is necessary to refer to the letter
dated 3rd December, 1987, which Shri P.N. Duda, petitioner
herein wrote to the Attorney General wherein he requested
for grant of consent for initiating contempt proceedings
against Shri P. Shiv Shankar and others namely, the Editor,
Hindustan Times and the Printer and Publisher, Hindustan
Times. After setting out the contempt as alleged by him in
that letter, he stated, inter alia, as follows:
"I am more aware than any that you may feel
embarrassed in giving consent for prosecution of
Shri Shiv Shankar, who happens to be the Minister
who effectively hires and fires law officers, and
for all purposes during whose pleasure they hold
their offices. Since emergency period we have seen
the modalities of this hiring and firing which
causes
579
apprehensions in my mind about the possible
outcome of this request. I, however, thought it
fit to make this request, reminding you of your
duties as the ex-officio leader of the bar to give
your consent for prosecution of the persons named.
The other two are being named because the one is
the Editor and the other the Printer and Publisher
of the paper, viz. the Hindustan Times, which
published the report.
I will expect you to take a decision in this
matter within a week of the receipt of this
request. If I do not hear from you in either way,
I will presume that you have declined the consent.
In that event I will consider myself free to move
the court for taking action on its own motion
under section 15(1)(a) of the Contempt of Courts
Act 1971 seeking my participation as an amicus
curiae."
A copy of the said letter was sent to the Solicitor
General of India with request to treat it as a request made
to him independently also under section 15(1)(b) of the Act
read with Rule 3(3) of the Supreme Court Contempt of Court
Rules, 1975. He wrote another letter on 8th December, 1987
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in which he reminded the Attorney General of certain stand
taken by him in respect of Shri Charanjit Lal Sahu. The
relevant portion of the said letter reads as follows:
"I may invite your attention to the remarkable
stand you took when a PIL matter initiated by Shri
Charanjit Lal Sahu came before a bench of the
Supreme Court, and how concerned you felt in
seeing Shri Sahu being prosecuted for having made
some statements about the Court, which were more
foolish than intemperate, for maintaining the
dignity of the court. No-one would have taken Mr
Shau’s statement seriously, nor was it addressed
to a large audience. Shri Shiv Shankar’s diatribe
against the Supreme Court is more intemperate, is
addressed to a very nation-wide large audience,
and the maker of the statement is a man of status,
whom no-one will ignore. I think you will keep
this aspect in mind in considering my request."
A copy of the said letter was also forwarded to the
Solicitor General of India. In reply the Attorney General
wrote a letter on 14th December, 1987 in which he stated,
inter alia, as follows:
580
"You suggest that we cannot discharge our duties
impartially. In other words, you have sought to
undermine the credibility of any decision we may
take. These two deeply hurtful allegations are
calculated to ensure that in which ever way we
exercise our function, justice will not be seen to
be done. Therefore, we feel that in the
circumstances no useful purpose will be served in
exercising our function at all.
This letter has the approval of the Solicitor
General to whom a copy of your letter was sent. "
Shri Duda wrote another letter on 19th December, 1987
both to the Attorney General and the Solicitor General, in
which he stated, inter alia, as follows:
"Needless to point out that your letter is
suggestive of your refusal to discharge your duty
to accede or not to accede to my request of
granting sanction and legally I am entitled to a
mandamus against you from an appropriate court
seeking direction against you to decide the
matter, one way or the other. I have thought it
fit to make an alternative request to you to
relieve me of the unpleasant duty of seeking
relief in any other way."
After setting out the facts in the petition, the
petitioner inter alia, stated that he had approached the
learned Attorney General and the Solicitor General to look
into these aspects of the matter and accord sanction. The
conduct of the said respondent No. 2 and respondent No. 3,
according to the petitioner, amounted to refusal to exercise
jurisdiction vested in them by law and, therefore, they were
impleaded as parties in the present proceedings (as
necessary and/or proper parties) in order that they may get
an opportunity to justifying the stand they have taken in
the matter flowing from their refusal to exercise
jurisdiction. Upon this notice was issued by this Court to
all the respondents in the manner indicated above.
Shri Gopal Subramaniam has appeared before us and filed
a statement signed by the learned Attorney General and also
made his oral submissions. Shri Trivedi, intervener has also
made his submissions. The main plank of their submissions is
that the actions of the Attorney General and the Solicitor
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General to act were motivated because of the allegation of
bias in the aforesaid letter. Reliance was
581
placed in the case of Vassiliades v. Vassiliades and
another, A.I.R. 1945 P.C. 38 where the Judicial Committee
reiterated that it was highly desirable that all proceedings
should be dealt with by persons who are above any suspicion,
however, unreasonable, of being biased. It was reiterated
that in any case, there was no question of the petitioner
being without remedy because the Court can always take
action suo motu. The question, therefore, is whether there
was a duty cast upon the Attorney General or the Solicitor
General to consider the question of granting consent in
terms of clause (b) of section 15(1) of the Act in an
appropriate case and if in fact such consent was not granted
that question could be considered by the Court. It is not a
question of making the Attorney General or the Solicitor
General a party to a contempt proceeding in the sense that
they are liable for contempt, but if the hearing of the
contempt proceedings can be better proceeded by obtaining
the consent of the Attorney General or the Solicitor General
and the question of justifiability of giving the consent is
interlinked on the analogy of Order II Rule I of the Code of
Civil Procedure which has application to a civil proceeding
and not to a criminal proceeding, it is permissible to go
into this question. Indeed, in the case of Conscientious
Group (supra) precisely this was done, where an application
for contempt was filed and which was revived pursuant to the
previous order and the Court while doing so had reserved the
right to consider on the previous occasion the question if
the Solicitor General refuses to give consent improperly or
on irrelevant ground the Court could consider that question.
In the case of Conscientious Group, (supra) the Court went
into the reasons given by the Solicitor General declining
consent. This Court in that case held on examination that
such consent was properly refused. This is a complete answer
to the contention that in a contempt petition the grounds
for either giving consent or not giving consent or for not
considering the application for consent are justiciable and
that question can not be gone into in that proceeding though
it must be emphasised in that proceeding that the Solicitor
General was not made a party to the proceeding. In my
opinion it will be more appropriate for an officer of the
Court whose action is being investigated to be made a party
in the proceedings otherwise it would be violative of the
rule of audi alteram partem. On behalf of the learned
Solicitor General, Shri A.K. Ganguly has made elaborate
submissions. It was submitted by Shri Ganguly that the
procedure followed by the petitioner simultaneously seeking
the consent of the Attorney General was not proper and the
Solicitor General had been invoked and that was not proper
and legal. It is not possible to accept this submission. It
was contended that there was no doctrine of necessity
applicable in this case because even if the
582
Attorney General or the Solicitor General does not give
consent a party is not without a remedy and can bring this
to the notice of the Court. Discretion vested in law
officers of this Court to be used for a public purpose in a
society governed by rule of law is justiciable. Indeed, it
was gone into in the case of Conscientious Group (supra) and
it will be more appropriate that it should be gone into upon
notice to the law officer concerned. It is a case where
appropriate ground for refusal to act can be looked into by
the Court. It cannot be said as was argued by Shri Ganguly
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that the refusal to grant consent decides no right and it is
not reviewable. Refusal to give consent closes one channel
of initiation of contempt. As mentioned hereinbefore there
are three different channels, namely, (1) the Court taking
cognizance on its own motion; (2) on the motion by the
Attorney General or the Solicitor General; and (3) by any
other person with the consent in writing of the Attorney
General or the Solicitor General. In this case apparently
the Attorney General and the Solicitor General have not
moved on their own. The petitioner could not move in
accordance with law without the consent of Attorney General
and the Solicitor General though he has a right to move and
the third is the court taking notice suo motu. But
irrespective of that there was right granted to the citizen
of the country to move a motion with the consent. In this
case whether consent was to be given or not was not
considered for the reasons stated by the Attorney General.
Those reasons are linked up with the Court taking up the
matter on its own motion. these are inter-linked. In that
view of the matter these are justiciable and indeed it may
be instructive to consider why this practice grew up of
having the consent . This was explained in S. K. Sarkar v.
V. C. Misra, [1981] 2 S.C.R. 331 where Sarkaria, J. speaking
for the Court observed at page 339 of the report that the
whole object of prescribing these procedural modes of taking
cognizance under section 15 of the Act was to safeguard the
valuable time of the High Court or the Supreme Court being
wasted by frivolous complaints of contempt of court.
Frequent use of this suo motu power on the information
furnished by an incompetent petition, may render these
procedural safeguards provided in subsection (2), otiose. In
such cases, the High Court may be well advised to avail of
the advice and assistance of the Advocate-General before
initiating proceedings. In this connection the Court
referred to the observations of Sanyal Committee appointed
to examine this question where it was observed: "In the case
of criminal contempt, not being contempt committed in the
face of the court, we are of the opinion that would lighten
the burden of the court, without in any way interfering with
the sanctity of the administration of justice, if action is
taken on a motion by some other agency. Such a course of
action would give
583
considerable assurance to the individual charged and the
public at large. Indeed, some High Courts have already made
rules for the association of the Advocate-General in some
categories of cases at least . . . " It was the practice
that except where the Court feels inclined to take action
suo motu parties were entitled to move only by the consent.
If no justiciable reason was given in an appropriate case
and such consent was refused can it be said that it would
not be proper for the Court to investigate the same?
The question of contempt of court came up for
consideration in the case of C. K. Daphtary and others v. O.
P. Gupta and others, [1971] Suppl. S.C.R. 76. In that case
a petition under Article 129 of the Constitution was filed
by Shri C.K. Daphtary and three other advocates bringing to
the notice of this Court alleged contempt committed by the
respondents. There this Court held that under Article 129 of
the Constitution this Court had the power to punish for
contempt of itself and under Article 143(2) it could
investigate any such contempt. This Court reiterated that
the Constitution made this Court the guardian of fundamental
rights. This Court further held that under the existing law
of contempt of court any publication which was calculated to
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interfere with the due course of justice or proper
administration of law would amount to contempt of court. A
scurrilous attack on a judge, in respect of a judgment or
past conduct has in our country the inevitable effect of
undermining the confidence of the public in the Judiciary;
and if confidence in Judiciary goes administration of
justice definitely suffers. In that case a pamphlet was
alleged to have contained statements amounting to contempt
of the Court. As the Attorney General did not move in the
matter, the President of the Supreme Court Bar and the other
petitioners chose to bring the matter to the notice of the
Court. It was alleged that the said President and the other
members of the Bar have no locus standi. This Court held
that the Court could issue a notice suo motu. The President
of the Supreme Court Bar and other petitioners were
perfectly entitled to bring to the notice of the Court any
contempt of the Court. The first respondent referred to Lord
Shawcross Committee’s recommendation in U.K. that
"proceedings should be instituted only if the Attorney-
General in his discretion considers them necessary." This
was only a recommendation made in the light of circumstances
prevailing in England. But that is not the law in India,
this Court reiterated. It has to be borne that decision was
rendered on 19th March, 1971 and the present Act in India
was passed on 24th December, 1971. Therefore that decision
cannot be of any assistance. We have noticed Sanyal
Committee’s recommendations in India as to why the Attorney
General should be associated with it, and
584
thereafter in U.K. there was report of Phillimore
Committee in 1974. In India the reason for having the
consent of the Attorney General was examined and explained
by Sanyal Committee Report as noticed before.
Our attention was drawn by Shri Ganguly to a decision
of the Allahabad High Court in G.N. Verma v. Hargovind
Dayal and others, A.I.R. 1975 Allahabad 52 where the
Division Bench reiterated that Rules which provide for the
manner in which proceedings for Contempt of Court should be
taken continue to apply even after the enactment of the
Contempt of Courts Act, 1971. Therefore cognizance could be
taken suo motu and information contained in the application
by a private individual could be utilised. As we have
mentioned hereinbefore indubitably cognizance could be taken
suo motu by the Court but members of the public have also
the right to move the Court. That right of bringing to the
notice of the Court is dependent upon consent being given
either by the Attorney General or the Solicitor General and
if that consent is withheld without reasons or L) without
consideration of that right granted to any other person
under section 15 of the Act that could be investigated on an
application made to the Court.
It was contended that neither the Attorney General nor
the Solicitor General were proper or necessary parties.
Reliance was placed on B. K. Kar v. The Chief Justice and
his Companion Judges of the Orissa High Court and others,
[1962] 1 S.C.R. 319. In that case under an order passed by
the appellant, a Magistrate, one was put in possession of
some property on October 14, 1955. In revision the order was
set aside by the High Court on August 27, 1957 and the
opposite party S applied on November 20, 1957 to the
appellant for redelivery of possession. applied to the High
Court for a review of its previous order and on November 25,
1957, the application was admitted and an interim stay was
granted of the proceedings before the appellant. A telegram
addressed to a pleader, not the counsel for G, was filed
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along with the application. The appellant refused to act on
this application and telegram and on November 27, 1957, he
allowed the application of S for restitution. On November
28, 1957, a copy of the order of the High Court was received
and thereupon the writ for redelivery of possession was not
issued. The High Court convicted the appellant for contempt
of court for passing the order for restitution on November
27, when the High Court had stayed the proceedings. The
appellant appealed to this Court and impleaded the Chief
Justice and Judges of the High Court as respondents. This
Court held that the appellant was
585
not guilty of contempt of court. It further held that in a
contempt matter the Chief Justice and Judges of the High
Court should not be A made parties and the title of such a
proceeding should be "In re ..... the alleged contemnor".
Mudholkar, J. speaking for the Court observed at page 321 of
the report that the decision of Judges given in a contempt
matter is like any other decision of those Judges, that is,
in matters which come up before them by way of suit,
petition, appeal or reference. Since that was the real
position, this Court observed that there was no warrant for
the practice which was in vogue in India there, and which
had been in vogue for over a century, of making the Chief
Justice and Judges parties to an appeal against the decision
of a High Court in a contempt matter. The said observations
were sought to be relied in aid of the proposition that
where the decision of the Attorney General or the Solicitor
General was involved, they were not necessary or proper
parties. Reliance on this decision for this purpose is
entirely misconceived. Where an appeal comes to this Court,
which is a judicial decision, the Judges who rendered the
decision are not necessary parties. There is no lis between
a suitor and a judge in a judicial adjudication. But the
position is entirely different where there is suitor
claiming the exercise of a statutory right in his favour
which he alleges is hampered by an official act of a named
official in the Act. In respect of justiciability of that
act of the official there is a lis and if that lis is inter-
linked with the proceeding for contempt, there is warrant
for making him party in that proceeding though the prayers
and the notice must be issued differently.
As mentioned hereinbefore in the case of S.C. Sarkar v.
V.C. Misra (supra) this Court had observed that it may well
be advices to avail of the advised and assistance of the
Advocate General before initiating proceedings. Shri Ganguly
appearing for the Solicitor General sought to urge before us
that advice and assistance could not be compelled by a
suitor. This cannot be agreed to. The statute gives a right
to a suitor to move the Court in one of the contingencies
for contempt or bring to the notice of the Court the
contempt with the advice and assistance of the Attorney
General or the Solicitor General. If such right is not
considered on relevant materials then that action is
justiciable in an appropriate proceeding for contempt.
Reference may be made to the case of Attorney General
v. Times Newspapers Ltd., [ 1973] 3 All E.R. 54. In that
case a drug company began to- make and sell in the United
Kingdom a sedative which contained the drug thalidomide.
Lord Morris observed in that case that the purpose and
existence of courts of law is to preserve freedom
586
within the law for all well disposed members of the
community and anything which hampers the administration of
law should be prevented but it does not mean that if some
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conduct ought to be stigmatised as being contempt of court
it could receive absolution and be regarded as legitimate
because it had been inspired by a desire to bring about a
relief of some distress which was a matter of public
sympathy and concern. Dealing with this aspect Lord Cross of
Chelsea has observed that ’contempt of court’ means an
interference with the administration of justice and it is
unfortunate that the offence should continue to be known by
a name which suggests to the modern mind that its essence is
a supposed affront to the dignity of the court. ’Justice’ he
said is an ambiguous word. When we speak of the
administration of justice we mean the administration of the
law, but often the answer which the law gives to some
problem is regarded by many people as unjust. Lord Cross
further observed that there must be no prejudging of the
issues in a case is one thing. To say that no one must in
any circumstances exert any pressure on a party to
litigation to induce him to act in relation to the
litigation in a way in which he would otherwise not choose
to act is another and a very different thing. Lord Cross at
page 87 of the report observed as follows:
"In conclusion I would say that I disagree with
the views expressed by Lord Denning MR and
Phillimore LJ (1973 1 All E.R. 815) as to the
’role’ of the Attorney-General in cases of alleged
contempt of court. If he takes them up he does not
do so as a Minister of the Crown ’putting the
authority of the Crown behind the complaint’-but
as ’amicus curiae’ bringing to the notice of the
court some matter of which he considers that the
court shall be informed in the interests of the
administration of justice. It is, I think, most
desirable that in civil as well as in criminal
cases anyone who thinks that a criminal contempt
of court has been or is about to be committed
should, if possible, place the facts before the
Attorney-General for him to consider whether or
not those facts appear to disclose a contempt of
court of sufficient gravity to warrant his
bringing the matter to the notice of the court. Of
course, in some cases it may be essential if an
application is to be made at all for it to be made
promptly and there may be no time for the person
affected by the ’contempt’ to put the . facts
before the attorney before moving himself. Again
the fact that the attorney declines to take up the
case will not prevent the complainant from seeking
to persuade the court
587
that notwithstanding the refusal of the attorney
to act the matter complained of does in fact
constitute a contempt of which the court should
take notice. Yet, again, of course, there may be
cases where a serious contempt appears to have
been committed but for one reason or another none
of the parties affected by it wishes any action to
be taken in respect of it. In such cases if the
facts come to the knowledge of the attorney from
some other source he will naturally himself bring
the matter to the attention of the court.
Lord Cross has noticed in his speech that if the
Attorney General declines to take up the case, it will not
prevent the complainant from seeking to persuade the Court
that notwithstanding refusal of the Attorney General to act,
the matter complained of does, in fact, constitute a
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contempt of which the Court should take notice. But that
does not derogate the rights of the individual to move the
Court. See the observations of Lord Reid. In Indian Express
Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of
India and others, [ 1985] 1 S.C.C. 641, the observations of
the aforesaid decision in Thalidomide case were relied upon.
Reliance was also placed on the observations of the
House of Lords in Gouriot and others v. H.M. Attorney
General, [1978] Appeal Cases 435. There it held the
initiation of litigation and the determination of the
question whether it is a proper case for the Attorney
General to proceed in, is a matter entirely beyond the
jurisdiction of that or any other Court. It is a question
which the law has made, to reside exclusively in the
Attorney General. The House of Lords was reversing the
decision of the Court of Appeal in the celebrated case of
Gouriet v. Union of Post office Workers, [19781 Appeal Cases
435 where the House of Lords could find no legal basis for
the lower courts’ attempt to outflank the Attorney General’s
refusal to grant his fiat to Mr. Gouriet. In the Court of
Appeal, all the three Judges, Denning M.R., Lawton and
Ormrod LJ, upheld the plaintiff’s claim for declaration and
interim injunction even in the absence of fiat by the
Attorney General. The statutory provisions were entirely
different. It may be in the context that the Attorney
General had to move in his discretion which is not
justiciable. But in our opinion it is justiciable. English
decisions are of persuasive value and we would prefer to
rest out decision on the observations of Lord Denning in
Gouriet v. Union of Post office Workers & Ors., [1977] 1
Q.B. 729 at 752 to 763 though made in connection with the
Attorney General’s discretion in
588
giving consent in instituting a suit for injunction by a
member of the public. In U.K. the position of Attorney
General as a member of the Cabinet is different. There the
contempt of Court is regulated by different statutory
provisions which were examined by a Committee known as
Phillimore Committee Report. See also the observations of
Sikri J. as the Chief Justice then was, in C.K. Daphtary &
Ors. (supra) at page 109 of the report.
Our attention was drawn to the decision of the Andhra
Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi,
[1974] 1 Andhra Law Times 170. We are unable to accept the
ratio stated in view of the terms of section 15 of the Act.
Our attention was also drawn to the case of N.
Venkataramanappa v. D.K. Naikar, A.I.R. 1978 Karnataka 57.
It is also not possible to accept the position that under no
circumstances the exercise of discretion by the Attorney
General or Solicitor General cannot be enquired into.
Having considered the peculiar facts and circumstances
of this case and the allegation of bias which were made
against the Attorney General and the Solicitor General, it
appears that the Attorney General and the Solicitor General
acted properly in declining to deal with the matter and the
Court could deal with the matter on attention being drawn to
this Court.
In the aforesaid view of the matter, this petition
fails and it is accordingly dismissed and the application of
Shri Trivedi is accordingly disposed of.
RANGANATHAN, J. I agree with the conclusion of my
learned brother that no case has been made but for
initiating contempt proceedings against respondent No. 1.
The principles applicable to, and the case law on the
subject have been discussed by him at length and I do not
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have much to add. The impugned comments were made by
respondent No. 1 in the course of his key note address at a
seminar on ’Accountability of the Legislature, Executive and
Judiciary under the Constitution of India’ organised by a
Bar Council. Though, in view of the position held by the
speaker, the contents of the speech, and. in particular,
some ’savoury’ passages therefrom have been highlighted in a
section of the Press, the speech was made before an audience
comprising essentially of lawyers, jurists and judges. The
speech represented primarily an exercise by the speaker to
evaluate the roles of the executive, legislature and
judiciary in this country since its independence and to put
forward the theory that, like the executive and
589
the legislature, the judiciary must also be accountable to
the people. The petitioner contends that there are certain
passages in the speech which seem to attribute a sub-
conscious partiality, bias or predeliction in judges in
disposing of various matters before them and that these
comments fall within the scope of the decision of this Court
in the case of E.M. Sankaran Namboodiripad v. T. Narayanan
Nambiar, [1970] 2 S.C.C. 325. Barrie & Lowe in their "Law of
Contempt," (Second Edition, PP. 233, 240-1) and Arlidge and
Eady in their "Law of Contempt" (Second Edition, PP. 162-3,
168), on a review of the judicial decisions on the topic,
seem to suggest that even allegation of partiality and bias
on the part of judges may not amount to contempt so long as
it is free from the taint of ’scurrilous abuse’ and can be
considered to be ’fair comment’. The observations made by
the Lord Justice Phillimore Committee on Contempt of Court
in 1974 on this type of contempt (Paras 160 & 161) also make
interesting reading. I do not, however, think it is
necessary to pursue this aspect of the matter. In the
present case, it is true, as pointed out by my learned
brother, there are passages in the speech which, torn out of
context, may be liable to be misunderstood. But reading the
speech as a whole and bearing in mind the select audience to
which it was addressed, I agree with my learned brother no
contempt has been committed. I think that we should accept,
at its face value, the affidavit of respondent No. 1 that
the speech was only a theoretical dissertation and that he
intended no disrespect to this Court or its functioning.
2. The second aspect of the case on which arguments
have been addressed before us relate to the procedure to be
followed in such matters. As this aspect raises some
important issues, I would like to state my views thereon
separately.
3. The criminal miscellaneous petition filed by the
petitioner purports to be only "information" u/s 15(1)(a)
and (b) of the Contempt of Courts Act, 1971 (’the Act’). The
petitioner seeks to inform this Court that he came to know
from a report in ’Hindustan Times’ that respondent No. 1, in
the course of a speech delivered by him at Hyderabad on
November 28, 1987, had made certain statements which, in the
petitioner’s opinion, rendered him liable to be proceeded
against for contempt of court. Appending what is stated to
be a full text of the said speech as published in the
’Newstime", the petitioner prays that this Court should be
pleased to "initiate contempt of court proceedings suo motu
under S. 15(1) of the Contempt of Court Act, 1971 read with
rule 3(a) of the Supreme Court (Contempt of Court) Rules,
1975". Though the prayer is vague as to the person
590
against whom the proceedings are to be initiated, the
allegations in the petition leave no doubt that it is
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respondent No. l, and only he, who, even according to the
petitioner, is to be charged with contempt. Nevertheless,
the petitioner has added three more respondents to the
Criminal Miscellaneous Petition, namely the Attorney General
of India (by name), the Solicitor General of India (by name)
and Sri 13 Ramoji Rao, Editor of "Newstime". In my opinion,
this petition raises certain question of general importance
which need to be discussed so as to evolve a proper
procedure, at least for future guidance in these matters. I
proceed to discuss these aspects.
4. Article 129 of the Constitution declares that the
Supreme Court shall be a court of record and that it shall
have all the powers of such a court including the power to
punish for contempt of itself. However, the powers of the
Supreme Court and High Court in this regard have been
recently classified in the Contempt of Courts Act, 1971.
This Act defines "contempt of court" and classifies it into
two categories, "civil contempt" and "criminal contempt".
These definitions need not be set out here, particularly as
the petitioner has filed a ’criminal miscellaneous petition
and it is quite clear that what he seeks to charge
respondent No. 1 with is "criminal contempt". Section 14
deals with contempt in the face of the court and we are not
concerned with it here. Section 15 specifies how criminal
contempt is to be taken cognizance of. It will be useful to
set out here the relevant portions of this section:
" 15. Cognizance of criminal contempt in other
cases-
(1) In the case of a criminal contempt, other than
a con tempt referred to in Section 14, the Supreme
Court or the High Court 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, or
(c) in relation to the High Court for the Union
Territory of Delhi, such law officer as the
Central Government may, by notification in the
official Gazette, specify in this behalf, or any
other person, with the consent in writing of such
law officer.
xxx xxx xxx
591
(3) Every motion or reference made under the
section shall specify the contempt of which the
person charged is alleged to be guilty.
Explanation-In this section, the expression
"Advocate-general" means
(a) In relation to the Supreme Court, the
Attorney-General or the Solicitor-General;
xxx xxx xxx"
5. This Court has, with the approval of the President,
framed, in exercise of its powers under section 23 of the
Act read with article 145 of the Constitution, rules to
regulate proceedings for contempt of the Supreme Court. The
rules relevant for our present purpose are the following:
3. In case of contempt other than the contempt
referred to in rule 2, the Court may take action:
(a) suo motu, or
(b) on a petition made by Attorney General, or
Solicitor General or
(c) on a petition made by any person, and in the
case of a criminal contempt, with the consent in
writing of the Attorney General or the Solicitor
General.
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4.(a) Every petition under rule 3(b) or (c) shall
contain:
(i) the name, description and place of residence
of the petitioner or petitioners and of the
persons charged;
(ii) nature of the contempt alleged, and such
material facts, including the date or dates of
commission of the alleged contempt as may be
necessary for the proper determination of the
case;
(iii) if a petition has previously been made by
him on the same facts, the petitioner shall give
the details of the petition previously made and
shall also indicate the result thereof;
592
(b) The petition shall be supported by an
affidavit.
(c) where the petitioner relies upon a document or
documents in his possession or power, he shall
file such document or documents of true copies
thereof with the petition.
(d) No court-fee shall be payable on the petition,
and on any documents filed in the proceedings.
5. Every petition under rule 3(b) and (c) shall be
posted before the Court for preliminary hearing
and for orders as to issue of notice. Upon such
hearing, the Court, if satisfied that no prima
facie case has been made out for issue of notice,
may dismiss the petition, and, if not so satisfied
direct that notice of the petition be issued to
the contemner.
6.(1) Notice to the person charged shall be in
Form I. The persons charged shall, unless
otherwise charged shall, unless otherwise ordered,
appear in person before the Court as directed on
the date fixed for hearing of the proceedings, and
shall continue to remain present during hearing
till the proceedings is finally disposed of by
order of the Court. F. (2) When action is
instituted on petition, a copy of the petition
along with the annexures and affidavits shall be
served upon the person charged.
10. The Court may direct the Attorney- General or
Solicitor General to appear and assist the Court.
6. A conjoint perusal of the Act and rules makes it
clear that, so far as this Court is concerned, action for
contempt may be taken by the Court on its own motion or on
the motion of the Attorney General (or Solicitor General) or
of any other person with his consent in writing. there is no
difficulty where the court or the Attorney-General choose to
move in the matter. But when this is not done and a private
person desires that such action should be taken, one of
three courses is open to him. He may place the information
in his possession before the Court and request the Court to
take action: (vide C.K. Daphtary v. O.P. Gupta, [1971]
Suppl. S.C.R. 76 and Sarkar v. Misra, [1981] 2 S.C.R. 331);
he may place the information before the Attorney
593
General and request him to take action; or he may place the
information before the Attorney General and request him to
permit him to move the Court. In the present case, the
petitioner alleges that he has failed in the latter two
courses-this will be considered a little later-and has moved
this "petition" praying that this Court should take suo motu
action. The "petition" at this stage, constitutes nothing
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more than a mode of laying the relevant information before
the Court for such action as the Court may deem fit and no
proceedings can commence until and unless the Court
considers the information before it and decides to initiate
proceedings. Rules 3 and 4 of the Supreme Court (Contempt of
Court) Rules also envisage a petition only where the
Attorney General or any other person, with his written
consent, moves the Court. Rule 5 is clear that only a
petition moved under rule 3(b) and (c) is to be posted
before the Court for preliminary hearing. The form of a
criminal miscellaneous petition styling the informant as the
petitioner and certain other persons as respondents is
inappropriate for merely lodging the relevant information
before the Court under rule 3(a). It would seem that the
proper title of such a proceeding should be " In re .. (the
alleged contemner)" (see: Kar v. Chief Justice, [1962] 1 SCR
320 though that decision related to an appeal from an order
of conviction for contempt by the High Court). The form in
which this request has to be sought and considered in such
cases has also been touched upon by the Delhi High Court in
Anil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1. This
case, at the outset, pointed out that the information had
been erroneously numbered by the office of the Court as
Criminal original No. 51 of 1978 and concluded with the
following observations:
"The office is to take note that in future if any
information is lodged even in the form of a
petition inviting this court to take action u/s 15
of the Contempt of Courts Act or Article 215 of
the Constitution, where the information is not one
of the persons named in section 15 of the said
Act, it should not be styled as a petition and
should not be placed before the judicial side.
Such a petition should be placed before the Chief
Justice for orders in chambers and the Chief
Justice may decide either by himself or in
consultation with the other judges of the court
whether to take any cognizance of the information.
The office to direct to strike off the information
as "Criminal original No. 51 of 1973" and to file
it"
I think that the direction given by the Delhi High
Court sets out
594
the proper procedure in such cases and may be adopted,
atleast in future, as a practice direction or as a rule, by
this Court and other High Courts. However, a petition having
been filed and similar petitions having perhaps been
entertained earlier in several courts, I do not suggest that
this petition should be dismissed on this ground.
7. In this case, apart from filing his information in
the form of a miscellaneous petition, the petitioner has
added as respondents to the petition not only the alleged
contemner but three more persons. He says that he approached
the Attorney General of India and the Solicitor General of
India for their written consent to enable him to file a
petition under Section 15(1) read with rule 3(c) but that
they have refused to exercise the jurisdiction vested in
them by law and that, therefore, "they have been impleaded
as parties in the present proceedings (as necessary and/or
proper parties) in order that they may get an opportunity to
justify the stand they have taken in the matter flowing from
their refusal to exercise jurisdiction." So far as
respondent No. 4, is concerned, the only reason given for
impleading him is that the full text of the speech of
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respondent No. 1 has come out in the newspaper published by
him and placed before the court and that he was being
impleaded only to prove the authenticity of the speech, in
the event of possible disclaimer of the respondent No. 1. In
other words, respondent No. 4 is only a possible witness
through whom he proposes to prove the authenticity of the
speech which contains the words of alleged contempt. In my
opinion this cannot be done. Assuming that a petition is the
proper form of approach to the court under rule 3(a), I have
indicated earlier the proper title to such a petition. It
will have no respondents and it will be for the court to
issue notice to persons against whom a case for contempt
needs examination. Viewed as a petition under rule 3(c),
rule 4 envisages only that the petition should contain the
name, description and place of residence of the
petitioner(s) and the persons charged. It does not
contemplate any other person being made a party to it. Under
rule 6 the notice to the person charged is to be in the form
appended to the rules and the form of notice not only makes
it clear that it is to be addressed only to a person charged
with contempt of court but also contains certain directions
appropriate only to such a person. This is naturally so, for
it is obvious that the only persons who can be respondents
in such a petition are the persons who are charged with
criminal contempt. The petition, as filed here, is a
petition for initiating proceedings for contempt of court
only against respondent No. 1. Even if the petitioner has
any other cause of action against other persons, such
persons are neither necessary nor even proper parties to the
petition.
595
This is especially so because such cause of action is of a
purely civil nature. At best the petitioner can say that he
is entitled to a writ of mandamus directing the Attorney
General and Solicitor General to discharge their statutory
obligation in case they fail to do so or a writ of
certiorari to quash their decision in case they withhold
unreasonably their consent to the petitioner filing a
petition. But this is a remedy to be sought independently
against these persons by a separate writ petition. He cannot
seek to get relief against the Attorney General and
Solicitor General by a petition mixing-up his criminal
charge against respondent No. 1 and his civil grievances
against the Attorney General and Solicitor General. It is
true that on the terms of Section 15(1) and rule 3(c), a
petition for contempt will not be maintainable by a private
person without the written consent of the Attorney General
or the Solicitor General. But he cannot seek to get over
this objection to the maintainability of a petition without
such consent merely by the device of adding them as
respondents to the petition, even if he had added, in the
petition, a prayer for some relief against them. But, in
this case, even such a prayer is not there and no relief is
sought against the Attorney General or Solicitor General.
This petition, therefore, if treated as a petition under
rule 3(c), is not maintainable for want of consent by the
Attorney General and the Solicitor General and has to be
dismissed as such. That apart, as I have already pointed
out, the inclusion of respondents 2 to 4 as respondents to
the petition is totally unjustified and, even if the
petition is to be taken on record as a mere laying of
information under rule 3(a), the names of respondents 2 to 4
must be struck off from the array of parties. I would direct
accordingly.
8. This case itself illustrates the type of
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difficulties which can arise by filing such a rolled up
petition. Having regard to the nature of the allegations
against respondent No. 1 and the form in which the petition
had been presented, we were of opinion that the question as
to "what action, if any, need be taken" by this Court on
such a petition called for consideration and we directed the
issue of such a notice by our order dated 10.2.1988. The
terms of the order make it clear that we wanted to hear the
parties mentioned in the petition and the Additional
Solicitor General on the above question. Some aspects that
arise for consideration are: whether the petition is
properly framed; what is the relief, if any, that can be
given to the petitioner against the alleged refusal of the
Attorney General and Solicitor General to give consent to
the petitioner to file a contempt petition; and whether, in
case they considered themselves disabled from acting on the
application, the Additional Solicitor General can be called
upon to exercise the said
596
function. We needed assistance on these issues. If the
Attorney A General/Solicitor General had not been made
parties, we would have called upon them to assist us under
rule 10. Since, however, they had been added as parties, we
directed notices to issue to them "as to what action, if
any, need be taken on the petition." Unfortunately, we find
that a notice was issued not only to the first respondent
named in the petition (the alleged contemner) but also to
the other "respondents" named in the petition, in the form
prescribed under the rules containing recitals which are
appropriate only in the case of a person charged with
contempt of court, though a mention was specifically made
that the contempt charge was only against respondent No. 1.
The issue of notices in the prescribed form to the other
respondents was unjustified. This type of difficulty arose
only because the petition joined, as respondents, persons
who are totally unnecessary for deciding the issue of
contempt. There was no question of any ’contempt’ notice
being issued to the Attorney General/Solicitor General as
there was not even a suggestion of any such allegation
against them and no other relief had also been sought
against them. I think that, in the circumstances, notices
should not have been issued to them in the form in which
they were issued.
9. I may next consider the question whether even if the
petitioner was particular about his right to file a petition
under rule 3(C), he can have any recourse against the
Attorney General and the Solicitor General in case they
refuse their consent or, as alleged in this case, refuse to
deal with the petitioner’s application. One possible view is
that the discretion to be exercised by the Attorney General/
Solicitor General is a quasi-judicial discretion and that
its exercise is subject to judicial review by this court. In
this connection, reference was made to the judgment of this
Court in Conscientious Group v. Mohammed Yunus and ors.,
J.T. 1987(2) 377. In that case, the petitioner had withdrawn
a contempt petition filed by it as the Attorney General had
expressed his inability to exercise his jurisdiction for
reasons stated by him. Subsequently, the petitioner on
learning that it could get the consent of the Solicitor
General, sought to have the earlier order recalled. Bhagwati
C. J. Observed:
" .. we would make it clear that it would be open
to the petitioner to approach the Solicitor
General and to revive the petition after obtaining
the consent of the Solicitor General under Rule
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3(c). Since this remedy is available to the
petitioner for reviving the petition for contempt,
we do not propose to recall the order permitting
withdrawal of
597
the petition. The petition can be revived by the
petitioner after obtaining the consent of the
Solicitor General. We may point out that the
petitioner will not be without remedy, if the
Solicitor General refuses his consent on any
irrelevant ground. "
The matter was then referred to the learned Solicitor
General who declined consent stating that it would not be in
public interest to give his consent. The court then
considered the reasons given by the learned Solicitor
General and came to the conclusion that the ground stated by
him for declining the consent could not be said to be
irrelevant in the eye of the law or characterised as
arbitrary, illegal or unreasonable. The petition for
contempt was, threfore, dismissed. From these circumstances,
it is sought to be suggested that the action of the Attorney
General/Solicitor General is subject to judicial review by
this Court.
10. In my opinion this is not the necessary conclusion
that follows from the observations extracted above. Our
attention has been drawn by Sri Ganguly, appearing for the
learned Solicitor General, to the decision in Rajagopal Rao
v. Murtza Mutjahdi, [1974] 1 Andhra Law Times, 170 and N.
Venkataramarlappa v. D.K. Naikar, A.I.R. 1978 Kar. 57, that
the grant or refusal of consent is not justiciable. My
learned brother has not accepted the correctness of these
decisions on the ground that the statute confers a duty and
discretion on these law officers and that their action
cannot be beyond judicial review as no person can be above
law. I am, however, inclined to think there is something to
be said in favour of the view taken by the two High Courts
for two reasons.
11. In the first place the role of the Attorney
General/Solicitor General is more akin to that of an amicus
curiae to assist the court in an administrative matter
rather than a quasi-judicial role determining a lis
involving rights of a member of the public vis-a-vis an
alleged contemner. As pointed out by the Supreme Court in
S.C. Sarkar v. V.C. Misra, [1981] 2 S.C.R. 331, there are
difficulties in the Court making frequent use of the suo
motu power for punishing persons guilty of contempt. The
Attorney General offers his aid and assistance in two ways.
On the one hand, he moves the Court for action when he comes
across cases where he thinks there is necessity to vindicate
the dignity and reputation of the Court. On the other, he
helps in screening complaints from the public to safeguard
the valuable time of the Court The observations of Lord Reid
and Lord Cross in the
598
Thalidomide case: A.G. v. Times Newspapers, [1972] A.C. 277,
of the House of Lords, in a different context, in Gouriet v.
Union of Post office Workers, [1978] A.C. 435 and of Lord
Denning and Lawton LJ, in the same case in the Court of
Appeal (1977-1 Q.B. 729) bring but this aspect of the
Attorney General’s functions.
12. Secondly, if we analyse the types of action which
the Attorney General/Solicitor General may take on an
application made to him, the position will be this. Firstly,
he may grant permission in which case no further question
will arise. I do not think it will be open to any other
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person to come to the court with a prayer that the Attorney
General/Solicitor General ought not to have given his con
sent. For, it would always be open to the Court, in case
they find no reason to initiate action, to dismiss the
petition. Secondly, it is possible that the Attorney
General/Solicitor General may not be able to discharge his
statutory function in a particular case for one reason or
other. This was what happened in the case of Mohammed Yunus
cited earlier. In that case it was only the Attorney General
who was unable to discharge his functions under Section 15
and the petitioner could move the Solicitor General, who
declined consent. But there might be cases in which both the
Attorney General and the Solicitor General are not in a
position to take a decision on the application made to them
by a private party. Thirdly, both of them may refuse their
consent. In the latter two cases, I am unable to see what
purpose would be served by the Court spending its time to
find out whether the Attorney General/Solicitor General
should have given a decison one way or the other. For, the
petitioner is not without remedy. It is open to him always
to place the information in his possession before the Court
and request the Court to take action. (see, Lord Cross in
A.G. v. Times Newspaper, [1974] A.C. 277 at p. 321.
Bhagwati, C.J. could have meant this when he said that, if
the consent of the Solicitor General was withheld on
irrelevant grounds, the petitioner was not without remedy.
13. the petitioner has submitted that the Attorney
General and Solicitor General acted unreasonably in
declining to act in the present case. Though, as indicated
earlier, it will not be a fruitful exercise to review such
decision, particularly when a request for suo motu action
under rule 3(a) has been made, the point having been raised,
I shall consider how valid this complaint is. What the
petitioner here did was that, instead of merely placing the
information with him before the Attorney General/Solicitor
General and seeking their consent to his filing a petition
before the Court, the petitioner wrote a letter contain-
599
ing a lot of other irrelevant matter. In particular, in
paragraph 7, he suggested that the Attorney
General/Solicitor General might feel embrassed in giving
consent for the prosecution as the person sought to be
charged happened to be the Minister "who effectively hires
and fires law officers and for all purposes at whose
pleasure they hold their office." He also expressed his
apprehensions about the possible outcome of his request. In
other words, the petitioner, while purporting to seek the
consent of the Attorney General/Solicitor General,
simultaneously expressed his lack of confidence in their
judgment and their ability to discharge their duties
objectively and impartially. It is not surprising that, in
this situation, the learned Attorney General/ Solicitor
General decided not to exercise their statutory powers at
all one way or the other. The learned Attorney General has
placed before us a statement explaining his stand in the
matter. He has pointed out that two occasions had arisen in
the past when, for compelling reasons, he could not deal
with an application for consent filed before him. So far as
the present case is concerned, he has stated:
"The Attorney General has declined to exercise his
functions under Section 15 of the Contempt of the
Courts Act in view of the allegations of lack of
impartiality and independence. These allegations
contain a reflection of bias and foreclosure on
the part of the Atorney Genera. The Attorney
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General declined to investigate the matter since
the allegation of bias should normally disentitle
him from proceeding further with the matter. The
Attorney General has followed this course
consistently."
From the above narration, it is clear that the Attorney
General/ Solicitor General acted rightly and in the best
traditions of their office by declining to deal with the
petitioner’s request and leaving it to the petitioner to
follow such other course as he considered advisable. The
petitioner had cast aspersions agaist both the Law officers
doubting their ability act objectively and thus stultified
by his own conduct this course indicated by the statute.
14. The last question that remains to be touched upon
is whether, in a case where neither the Attorney General nor
the Solicitor General is in a position to consider a request
under Section 15(1)(c), it is open to the petitioner to seek
the consent of some other law officer such as the Additional
Solicitor General. Apart from the fact that, in the present
case, the petitioner would have had the same criticism
against the Additional Solicitor General as he had against
the
600
Attorney General/Solicitor General, the clear answer to the
question appears to be that it is not open to him to seek
such consent. Section 15 is quite clear that the written
consent of only those officers as have been specifically
authorised by the section would be taken note of for
entertaining a petition under the section. But this does
not, in any way, deprive the petitioner of his remedy as he
can come to Court, as indeed he has done, requesting the
court to take suo motu action.
15. For purposes of convenience, I may sum up my
conclusions. They are:
(a) This petition, if treated as one filed under
Section 15(1) read c. with rule 3(a) is not in proper
form and, if treated as one filed under rules 3(b) and
3(c), is not maintainable as it is not filed by the
Attorney General/Solicitor General or by any person
with his consent.
(b) In either event the petitioner should not have
added to the petition respondents other than the person
who, according to the petitioner, is guilty of contempt
of court and so their names should be deleted from the
array of parties.
(c) In case the Attorney General/Solicitor General
refuse con sent or decline to act, their decision is
not judicially reviewable and petitioner’s remedy is to
approach the Court for action under rule 3(a).
(d) In this case, the Attorney General/Solicitor
General acted properly in declining to deal with the
petitioner’s application either way; and
(e) Considering the petition as nothing more than
information under rule 3(a) on which this Court may or
may not take suo motu action and, after hearing counsel
for the alleged contemner, we think there is no need to
initiate proceedings against respondent No. 1 for
contempt of court.
I, therefore, agree that the petition should be
dismissed.
S.L. Petition dismissed.
601