)'

P.N. DUDA

A

Y.

P. SHIV SHANKAR & OTHERS

APRIL 15, 1988

j

[SABYASACHI MUKHARJ! AND S. RANGANATHAN, JJ.] B

Contempt of Courts Act, 1971-Prayingfor initiation of proceed-

·~

ings for Contempt of Supreme Court under section 15( J)(a) and (bi

of-Read with rule 3(aj, (b) and (c) of Supreme Court Contempt of Court

Rules, 1975, in respect of a speech delivered at a meeting of Bar

'+

Council, reported in newspapers.

c

The respondent No. 1, Shri P. Shiv Shankar, Minister of Law,

Justke 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 D

towards affluent people and using extremely intemperate and undigni-

fled 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 approachell 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

E

declined to deal with this prayer of the petitioner, an application for

initiation

of Contempt under section lS(l)(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 F

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 main-G

tainable without the consent of the Attorney General

or the

Solicitor

General. In the meantime, Shri R.N. Trivedi, Advocate, filed an appli-

cation, 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 H

547

A

B

c

D

E

F

G

H

548

SUPREME COURT REPORTS [19881 3 S.C.R.

not constituted contempt within the meaning of section 2(c) of the Act.

Declining to initiate the contempt proceeding and dismissing the

peiitioii 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 main-

tainable 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. [S62H; 563A-B I

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 adminis-

!ration 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.

[S63C-FI

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-

~

)\.

'

,,

)...

,,

)-

)

P.N. DUDA v. P.S. SHANKAR 549

cated its predisposition, prejudices. This is inevitable. The intuition

A

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 J. certain inclination and it cannot be said that an expression or view or B

propagation of that view hampers the dignity of the Courts or impairs

the administration of justice. [565F-H; 566A]

•.

~-

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 oflaw and

¥

that has been caused not so much by scandalising remarks made by

c

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 D

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 reason-

able criticism must be encouraged because after all no one, much less

Judges, can claim infallibility. Such a criticism may fairly assert that

E

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 pre-

disposition to convict

or deliberately took a turn in discussion of

evidence because be had already made up his mind to convict the

r

accused or has a wayward bend of mind, is attributing motives, lack of

dispassionate and objective approach and analysis and pre-judging of

F

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 adminis-

!ration 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''

G

--',

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

I

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 H

A

B

c

D

E

F

G

550 SUPREME COURT REPORTS [19881 3 S.C.R.

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; 570AI

Though at places, intemperate, the statement of the Minister in

this case cannot be said to amount

to interference with the

administra­

tion 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 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

intem­

perate, 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

H bound to do, has implemented the laws and in implementing the laws it

1

i

P.N. DUDA v. P.S. SHANKAR 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

deci­

sions 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]

A

B

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. )62, the speech of the

Minister

read in its proper perspective, did not bring the

administra·

tion·ofjustice 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-;,ould have achieved his purpose by C

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 ofjustice

into disrepute. In that view, it must be held that the Minister was

not

guilty of contempt of Court. [577A·C] D

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 E

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 F

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 G

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 proceed-

ings 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

certafoly is linked up with H

A

552 SUPREME COURT REPORTS [1988) 3 S.C.R.

c"ntempt proceedings. In this case, the Minister had taken the plea that

consideration of this case could not

be takeu 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

J(c)

of the Act? The Attorney General and the

Solicitor General, in

respect of this Court, occupy positions of great importance and rele-

'(

B vance. 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,

)I

c

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

D necessary and1or proper parties) in order that they might get an

opportunity to justify the stand they had taken in the matter flowing

from their refusal to exercise jurisdiction. [580E-G I

The question is whether there is a duty cast upon the Attorney

General

or the

Solicitor General to consider the question of granting

E 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

F Attorney General

or the Solicitor General and the question of

justicia­

bility of giving the consent is inter-linked on the analogy of Order II,

Rule I o:>f 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

G given by the Solicitor General declining consent, and held

on

examina­

tion 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

applica­

tion for consent are justiciable and that question cannot be gone into in

that proceeding though it must be emphasised in that proceeding that

H the Solicitor General was not made a party to the proceeding. In his

,

,­

.,

J.

;

PX DUDA v. P.S. SHANKAR 553

Lordship's opinion, it will be more .appropriate for an officer of the

Court ·whose action is being investigated to he made a party in the

proceedings, otherwise

it

would be violative of the·rule of audi a/teram

partem.

Discretion vested in the

law officers of this Court to be used for

a 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.

Bnt 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 with­

held 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. [58JB-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 tis 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 tis is inter-linked with

the proceeding for contempt, there is

warrant for making him party

A

B

c

D

E

F

in that proceeding though the prayers and the notice must be issued G

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 I H

554 SUPREME COURT REPORTS [!988] 3 S.C.R.

'(

A

Having considered the peculiar facts and circumstances of this

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

appli·

B cation ofShri Trivedi was accordingly disposed of. [588D·El )_

Per S. Ranganathan, J. (Concurring)

-

The impugned comments were made by the respondent No. l in ).J

the course of his key note address at a seminar on 'Accountability of the

'

c

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 evaluate the roles of the

execu·

live, legislature and judiciary in the country since its independence and

D to put forward the theory that, like the executive and the legislature, the

judiciary must also be accountable to the people. [SSSF-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

E

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

sec 325. 1ss9A·Bl

~

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

-l'/

F

be misunderstood, but reading the speech as a whole and bearing in

I

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. l 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·El

G

The second aspect of the case on which arguments were addressed

/.-

before the Court, related to the procedure to be followed in such mat·

ters. This aspect raised some important issues. [589E·FI

'

The criminal miscellaneous petition ftled by the petitioner

H purported to be only "information" u/s 15 (l)(a) and (b) of the

.

•

J

~

~

--

r

~-

"

P.N. DUDA v. P.S. SHANKAR 555

Contempt of Courts Act, 1971 ('the Act'). The petitioner stated that

.A

he came to know Crom a report in the newspaper that the respondent

No. 1,

in the course or his speech, had made certain statements which

randered him liable to be proceeded

against for contempt or court, aud,

appending

what was stated to be a

Cull text or the said speech published

in the "Newstime", prayed for initiation or contempt or court proceed-

. ings

suo motu under s. 15(1)

of the Contempt of Courts Act, 1971, read B

with nile 3(a) or the Supreme Court (Contempt or 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 respon-.

dents to the criminal miscellaneous petition, namely, the Attorney

General for India (by name), the Solicitor General or India (by name)

and Sri Ramji Rao, Editor or "Newstime". The petition raised certain

c

questions or general importance for consideration to evolve a proper

procedure for future guidance in these matters. [589F-H; 590A-B I

The petitioner sought to charge respondent No. 1 with "Criminal

Contempt" under Section 15 of the Contempt or Courts Act, 1971.

D

A conjoint perusal or the Act and the rules or the Supreme Court

to regulate proceedings for Contempt or Supreme Court makes it clear

that so Car as this Court is concerned, action for contempt may be taken

by the Court on its own motion or on the motion or the Attorney

General

(or the Solicitor General) or or any other person with his con-

sent in writing. There is no difficulty where the Court or the Attorney E

General chooses to move in the matter. When a private person desires.

that such action should be taken, he may place the inCormation 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 Court. In this case, F

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

uuless the Court considered the information before it

and decided to

initiate proceedings. [592F-H; 593A-B]

G

The

Corm or a criminal miscellaneous petition styling the infor­

mant as the petitioner and certain persons as respondents is inappro­

priate for merely lodging the relevant information before the Court

under rule 3(a) or the Supreme Court (Contempt of Court) Rules. The

proper title or such a proceeding should be "ID re • ; ••••••• (the

alleged conte~pt)". The direction given by the Delhi Hii:h Court in H

A

B

556 SUPREME COURT REPORTS [1988) 3 S.C.R.

A nil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1 that" ••••••••

if any information is lodged even in the form or a petition inviting

this

Conrt to take action u/s 15 orthe Contempt or Courts Act or Article

-

-_212 of the Constitution, where the informant is not one of the

pei:c.ons

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

•••••••• " 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 f"Iled and similar

--petitions having been perhaps entertained earlier in several courts, his

C

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 peti­

tion, the petitioner had added as respondents to the petition not only the

D · 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 refus­

ing 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

E 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 +

F-_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

hadr"nreasonably withheld their con-

sent to the petitioner's filing a petition. This remedy was to be sought

-G independently against these persons by a separate writ petition. He

could not seek relief against the Attorney General and the Solicitor y-

·------. · 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 maintaina­

bility of a petition, i.e. want of consent of the Attorney General or the

H Solicitor General, merely by the device of adding them as respondents

.1

-'r.

P.N. DUDA v. P.S. SHANKAR 557

to the petition; no relief was sought against the Attorney or the Solicitor

General. This petition,

if treated as

one under rule 3(c) was not main­

tainable 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),

A

the names of respondents 2 to 4 must be struck off from the array of B

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

neen1IDught against them. [594B-H; 595A-DI

The petitioner had submitted that the Attorney General and the

Solicitor General had acted unreasonably in declining to act in this case. C

In addition to merely placing the information with him before the

Attorney General/Solicitor General and

seekidg 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 D

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

statu­

tory powers at all one way or the oth.;r. 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 E

aspersions against both the law officers, doubting their ability to act

objectively

and this stultified by his conduct this course indicated by the

Statute. [S98G-H; 599A-C, Fl

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 F

under section IS(l)(c), the

petitio:mer 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 sec"tion IS, 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. [S99G-H; 600A-BI G

Summing up the

conclusions-

(a) This petition, if treated as and filed under section 15(1) read

with rule J(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 H

558 SUPREME COURT REPORTS [1988] 3 S.C.R.

Attorney General;Solicitor General or any other person with his

A

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

B the parties; I 600D I

c

(c) In case the Attorney General/Solicitor General refuse consent

or decline to act, their decision is not judicially reviewable and a peti­

tioner's remedy is to approach the Court for action under rule 3(a); [600EJ -1

(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 under rule

l(a) on which this Court might or might not take suo motu action and

D there was no need to initiate proceedings against the respondent

No. l

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.

E 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. i54; Regina v. Commissioner of

Police of the Metropolis, Ex Parte Blackburn, [1968] 2 W.L.R. 1204;

Special Reference No. I of 1964, [196511 S.C.R. 413; Shri Baradakanta

Mishra

v. The Registrar of

O:issa High Court and another, [1974] I

F SCC 374; Ram Dayal Markarha v. State of Madhya Pradesh, [1978] 3

SCR 497; Conscientious Group v. Mohammed Yunus and others,

I 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.

G-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, "19621 1 SCR 319; Attorney General v. Times 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;

H

Gouriet v.

Union of Post Office Workers, [1978] Appeal cases 435;

•

-

1

P.N. DUDA v. P.S. SHANKAR. [MUKHARJI, J.J 559

Gouriet v. Union of Post Offices Workers & Ors., [1977] l Q.B. 729 to A

752; Rajagopal v. Murtza Mutjahdi, [1974] l 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.

CRIMINAL ORIGINAL JURISDICTION: Criminal Miscella· B

neous Petition No. 260 Of 1988.

Under Section 15(l)(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.

c

"¥ 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, San jay Bharthari and R.K. Joshi for the Respondents.

The following Judgments of the Court were delivered:

D

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 E

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 F

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 attention to that speech. According to him, by

that speech respondent No. l, Shri P. Shiv Shankar has made state­

ments against the Supreme Court which are derogatory to the dignity

of this Court, attributing this Court with partiality towards economi-G

cally 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.

H

560 SUPREME COURT REPORTS [1988] 3 S.C.R.

A We have read the entire speech. It is not necessary to set out the

entire speech. The relevant portions of the said speech for the present

purpose are

as follows:

B

c

"(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 compen­

sation. must represent the price which a willing seller

is

prepared to accept from a willing buyer. The entire prog­

ramme

of Zamindari abolition suffered a setback. The

Constitutioli 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."

O He inter alia further observed:

E

F

G

H

"(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 them-

selves.'

,

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 confron­

tation presented by the Judiciary in introducing and imple­

menting basic agrarian reforms for removal of poverty

y·

~

\.

..,

1

-

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.] 561

what is the ultimate result. Meanwhile even the political

will seems to have given

way and the resultant effect is the unproper and ineffective implementation of the land

reform laws by the Executive and the Judiciary suppliment·

ing 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 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

A

B

c

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 D

this country, ably supported by industrialists, the bene·

ficiaries of independence, got higher compensation by the

intervention of the Supreme Court

in Cooper's case.

Anti·

social elements i.e. FERA violators, bride burners and a

whole horde of reactionaries have found their heaven

in the

Supreme

Court." E

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 declirled to

deal with this prayer

of

the petitioner for the reasons stated in the

letter which is an annexureto 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

F

G

H

562 SUPREME COURT REPORTS [1988] 3 S.C.R.

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

B 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

C 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 Andbra

Pradesh at Hyderabad where the audience con­

sisted

of Judges and lawyers.

On that occasion he had made a speech

on the subject of accountability of the Legislature, the Executive and

o 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 be 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

E further stated that the contempt petition

is not maintainable in

law

without the consent of the Attorney General or the Solicitor General

and it was liable to be dismissed. In the Meantime an application has

been filed

by Sbri R.N. Trivedi who is an advocate of 25 years' stand­

ing at the

Bar in which be has claimed the right to be impleaded as a

party.

He has stated in the petition that the learned Attorney General

F 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 con­

tempt 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

G

our request appeared as Amicus Curiae and made his submissions. We

express

our gratitude to him.

Before deciding the question whether this application was main­

tainable without the consent of the Attorney General or the Solicitor

General

as contended by Dr. Chitale on behalf of Shri Shiv Shanker

H and the question whether the Attorney General and the

Solicitor

-

~

I

,

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.] 563

General could be made parties to the contempt application and A

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 ques­

tion whether the speech made by Shri

P. Shiv Shankar and published

throughout the length and breadth of the country amounted to con­

tempt of this

Court, or in other words, whether the speech has the

l effect of bringing this Court into disrepute. B

"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.

c

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 D

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 pro­

ceedings arise out of that attempt. Judgment can be criticised; the

motives

of the Judges need not be attributed, it brings the administra­

tion

of justice into deep disrepute. Faith in the administration of

justice is one of the pillars through which democratic institution func-

'----~' tion~ a~d. sustains. In the free market place of ideas criticisms about

: r the 1ud1c1al 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. ·

E

F

In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar,

[1971] 1 S.C.R. 697, this Court had to deal with this jurisdiction in G

~. 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 was described by him as "an instrument of oppression" and the

Judges as "dominated by class hatred, class prejudices", "instincti-

~ vely" favouring the rich against the poor. He also stated that as part of H

---------------------~---- -----~

564 SUPREME COURT REPORTS [1988] 3 S.C.R.

A the ruling classes the judiciary "works against workers, peasants and

other sections of the working classes" and "the law and the sy-.tem of

judiciary essentially served the exploiting classes" (emp!·.1•'s ' .. ~'. 'ied)

It was found that these remarks were reported in ;he newspapers and

thereafter proceedings commenced in the High Court of Kerala. The

B

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 incomp-lete in some respects. The appellant further claimed that his observa­

tions did

no more than give expression to the Marxist

Philosophy and

what was contairied in the programme of the Communist Party of

India. By a majority judgment of the High Court the appellant was

C convicted

for contempt of court and fined

Rs.1000 or simple imprison-~

ment 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

D 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.

1be conviction of the appellant was upheld by this

Court. It was observed by Hidayatullah, C.J. _speaking for the Court

E

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 F

mush purpose. The likely effect of his words must be seen and they

clearly had.the effect of lowering the prestige ofjudges 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

G that the appellant had misguided himself about the true teachings of

Marx, Engles and Lenin. According to the Chief Justice he had misun-r

derstood 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 instrumeni of

H oppression, the Judges as guided and dominated by class hatred, class

-

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 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

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 (emphasis

,J supplied). It was further held that while the spirit underlying Article

19(1)(a), must have due play, the Court could nor overlook the provi­

sions

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 con­

cerned 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. 1

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 instru­

ment indicates its pre-disposition, its prejudices. This

is inevitable.

Justice Holmes in

his dissenting opinion in Joseph Lochner v.

People

A

B

c

D

E

F

of the

State of New York, 49 Lawyers' Edition 195-198 U.S. 1904 had G

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 H

566 SUPREME COURT REPORTS [19881 3 S.C.R.

composition of the people manning the institution

is analysed we

A 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.

B

c

The question of contempt of court by newspaper article criticis-

ing 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 pre­

pared 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

D should be formulated

by Judges themselves was

"so utterly inimical to

the independence

of the judiciary, violative of the Constitutional safe­

guards

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 show­

cause why proceedings for contempt under Article

129 of the Constitu-

E tion 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 criticisns of the judiciary must be

strictly rational and sober and proceed from the highest motives with-

F

out being coloured by any partisan spirit or tactics. This should be a

part

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

G 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

mann)r

which seems designed to lower respect for the judiciary and destroy

H public confidence in it, it could not be ignored. A decision on the

,

r

•

-

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 567

question whether the discretion to take action· for Contempt of Court

should be exercised must depend on the totality of facts and circum­

stances 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 protec­

tion

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 atten­

tion 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 scurril­

ous, 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.

A

B

c

D

E

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, 376 U.S. 254 that it is a F

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, [19681 2 W.L.R.

1204 observed as G

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 H

568

A

'; '

B

c·

D (

'

SUPREME COURT REPORTS [1988] 3 S.C.R.

it. For there is something far more important at stake. It is

no less than freedom of speech itself ..

It is the right of evety man, in Parliament or out of it, i:1 '.he

Press or over the broadcast, to make fair co=ent, even

outspoken co=ent on matters of public interest. Those

who

co=ent 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

E was)

more or less in a

critical language as the Hon'ble Minister's

speech in the instant case.

F

G

Gajendragadkar, C.J. in Special Reference No. 1of1964, [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 cauti~ ·

ously, wisely and with circumspection. Frequent or indis­

criminate 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

r

objectivity of their. approach,· and by the restraint, dignity

and decorum which they observe in their judicial conduct."

H It has been Well said that if judges decay, the contempt power

),

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.I 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 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 remedy less 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

tum 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

con­

cerned 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 criti­

cism 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

al­

ready 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 inarticu­

late 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

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570 SUPREME COURT REPORTS [1988] 3 S.C.R.

"search for light among the social elements of every kind that are the

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

.:J­

perception of a judge is important and relevant. Judicial process is not . 1

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 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 interpre­

tation

is fundamental, they give direction to all law­

making. The decisions of the courts on economic and social

questions depend upon their economic and social philo­

sophy; 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.

~:

G Cardozo tells us that the business of the judge, was to discover objec­

tive truth. His own little individuality, his tiny stock of scattered and

unco-ordinated philosophies, these, with all

his weaknesses and un­

conscious prejudices, were to be laid aside

arid 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

H

our human nature. According to Cardozo, Roosevelt, who knew men,

P.N. DUDA v. P.S. SHANK.AR [MUKHARJI, J.] 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

by whom the race was to be run.

It is well to remember the words of

Justice Cardozo where he says as follows: "I P.ave 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,

A

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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 o

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 E

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 to which we belong. We are adjectly credulous by

nature, and instinctively accept the verdicts

of the group. F

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 warn­

ings, and accept them as the mature results

of our own

reasoning." This was written, not of judges specially, but of G

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 H

572 SUPREME COURT REPORTS 11988] 3 S.C.R.

~

A

while h_uman nature is what it is. We may wonder some-

times 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

..._

B 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

I

c

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 aver-

D age 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

E 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 F

....

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

doctrin·e is undermined. Often the

G

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, has been described by

Mr. Henderson with singular felicity: "When an adherent

H

of a systematic faith is brought continuously in touch with

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.] 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

A

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· justice and as to amount to contempt of court. The Minister's state- D

ment does not interfere with the administration of justice. Administra­

tion

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 Athe­

naeum, and I presume you will wish to be a member.

If so,

may I have the pleasure of proposing you? There

is a meet­

ing of the Committee early next

week."

"The most politically influential of the judges, however,

has been the Master of the Rolls, Lord Denning

... With

h,is own modest roots he dismisses the attacks on a class­

based judiciary: The youngsters believe that

we come from

a narrow

background-it's all nonsense-they get it from

E

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that man

Griffith." G

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-H

574 SUPREME COURT REPORTS [1988) 3 S.C.R.

A tion in our society is to do so belatedly. He further says thus:

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"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 thlnk rightly. Faith in the administration of

justice is not shaken by such 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

1

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D 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.

1

Mohammed Yunus in making certain adverse comments about the

Judges who delivered the judgment of this Court in Civil Appeal I

No. 860 of 1986 National Anthem case (1986 3 S.C.C. 615) constituted I

E criminal contempt and it should be so dealt with. Notice on this peti-1

tion was issued. When the matter subsequently came up before a1

Bench of three Judges consisting of Bhagwati, C.J., Oza and K.N.

1

Singh, JJ., the contemnor filed a reply stating that the petition was not

maintainable inasmuch as the petitioner had not obtained the consent

1

in writing of the Attorney General as required under section 15 ofthe

1

F Act. It appears that the petitioner was directed by the Division Bench

1

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 peti-

G tioner'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

H court

but no one should attack the Judges who delivered the judgment

~-

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•

P.N. DUDA v. P.S. SHANKAR !MUKHARJI, J.] 575

as that denigrates the judicial institution and in the long term impairs

the democratic process.

Subsequently the petitioner

in that case filed Criminal Miscel­

laneous 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

h~ 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

af<lresaid 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 were justiciable.

As we have mentioned before the speech of the Minister has to

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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. F

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 G

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 H

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576 SUPREME COURT REPORTS 11988] 3 S.C.R.

Constitution. The Constitution therefore had to be amended by the

Jst, 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 herein­

before: "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 intro­

ducing 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 con­

trary 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 bene­

ficiaries 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".

G This, of course, if true, is a criticism of the laws. The Supreme

Court as it is bound to do has implemented the laws and in implement-liii.

ing the laws, it is a tribute to the Supreme Court that it has not dis-r

criminated 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

H

the laws and the loopholes in the legislation. The Courts are not deter­

red by such criticisms.

r

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 577

Bearing in mind the trend in the Jaw 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

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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 D

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, cogni­

zance for criminal contempt could be taken by the Court

by three E

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 F

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 G

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 H

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578 SUPREME COURT REPORTS (1988] 3 S.C.R.

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

in

respect of this Court occupy positions of great importance and rele­

vance. 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 statu­

tory 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

D 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 govern­

ment will often be,

in such cases, represented by the interested and

E malevolent

as instances of wanton oppression (Clive of lndia-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 'ti

F 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:

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H

"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

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 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 Couris Act

1971 seeking my

participation as an amicus

curiae." '

A copy of the said letter was sent to the Solicitor General of

India with reques_t 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 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:

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"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 state­

ment 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

G

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:

H

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G

580 SUPREME COURT REPORTS 11988] 3 S.C.R.

"You suggest that we cannot discharge our duties impar­

tially. 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 exer­

cise 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

J..

statement signed by the learned Attorney General and also made his

oral submissions. Shri Trivedi, intervener has also made his submis-

sions. The main plank of their submissions

is that the actions of the

Attorney General and the Solicitor General to act were motivated

H because

of the allegation of bias in the aforesaid letter. Reliance was

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 581

placed in the case of V assiliades v. Vassiliades and another, A.LR.

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 justiciability of giving the con­

sent 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 irrele­

vant 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 comp­

lete 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

A

B

c

D

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F

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B

c

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582

SUPREME COURT REPORTS [1988] 3 S.C.R.

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 that the refusal to grant consent decides no

right and it is not reviewable. Refusal to give consent closes one chan­

nel

of initiation of contempt. As mentioned hereinbefore there are

three different channels, namely, (I) 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. Sarkarv. 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 safe­

guard 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 sub­

section (2), otiose.

In such cases, the High Court may be well advised

to avail

of the advice and assistance of the

Advocate-G~neral 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

it 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

H motion by some other agency.

Such a course of action would give

· .. ,_

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P.N. DUDA v. P.S. SHANKAR (MUKHARJ!, J.] 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

propeI 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 advo­

cates 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 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 state­

ments 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 "proceed­

ings 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

A

B

c

D

E

F

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584 SUPREME COURT REPORTS [J988) 3 S.C.R.

A thereafter in U.K. there was report of Phillimore Committee in 1974.

B

c

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.LR. 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

D 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.

E

F

G

H

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,

I 19621 I S.C.R. 319. In that case

under an order passed by the appellant, a Magistrate, one G 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. G 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 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

'"-··

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}t.

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 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

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,

thaUs, in

matters which come up hefore 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

makirig 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 decisiqn 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 !is 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 !is and if that

!is

is inter-linked with the proceeding for contempt, there is warrant for

niaking 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.

A

B

c

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E

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 F

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

justieiable in an appropriate proceeding for contempt. G

Reference may be made to the case of

Attorney Ger.era/ 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 con­

tained the drug thalidomide. Lord Morris observed

in that case that

the purpose and existence of courts of law

is to preserve freedom H

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586 SUPREME COURT REPORTS [1988] 3 S.C.R.

within the Jaw 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 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 modem 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

D choose to act is another and a very different thing. Lord Cross at page

87

of the report observed as follows:

E

F

G

H

"In conclusion I would say that I disagree with the views

expressed by

Lord Denning MR and

Phillimore Ll (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 uotice of the court some

matter of which he considers that the court shall be in­

formed 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 coutempt

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 bring­

ing

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 pre­

vent the complainant from seeking to persuade the court

·~

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!

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 587

that notwithstanding the refusal

of the attorney to act the

A

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 B

knowl.edge

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 C

Attorney General to act, the matter complained of does, in fact,

constitute a 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 D

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 determi-E

nation 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, [1978] Appeal Cases 435 F

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 in junction even in the absence of fiat by

the Attorney General. The statutory provisions were entirely diffe-G

rent. 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 justici­

able. English decisions are of persuasive value and we would prefer to

resi out decision on the observations of Lord Denning in Gouriet v.

Union of Post Office Workers & Ors., [1977] I Q.B. 729 at 752 to 763

though made in connection with the Attorney General's discretion in H

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588 SUPREME COURT REPORTS [1988] 3 S.C.R.

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.LR. 1978 Karnataka 57.

It is also not possible to accept the position that under no circum­

stances 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.

RANG AN ATHAN, J. I agree with the conclusion of my learned

brother that no case has been made but for initiating contempt pro­

ceedings 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 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 inde­

pendence and to put forward the theory that, like the executive and

--

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P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.I 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 predelictiol1

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

0'1 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 addressecl, 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.

A

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3. The criminal miscellaneous petition filed by the petitioner F

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

state­

ments which, in the petitioner's opinion, rendered him liable to be G

proceeded against for comtempt

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 H

A

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590 SUPREME COURT REPORTS [1988[ 3 S.C.R.

against whom the proceedings are to be initiated, the allegations

in the

petition leave no doubt that it

is respondent No. ), 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

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,

197]. This Act defines

"contempt of court" and classifies it into two

categories, "civil contempt" and "criminal contempt". These defini­

tions 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

' .,

:'

'

'

-"

'

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P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.] 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

,.

A

B

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 C

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 D

in rule 2, the Court may take action:

(a) suo motu,

or

(b) on a petition made by Attorney General, or Solicitor

General

or E

(

c) on a petition made by any person, and in the case of a

criminal contempt, with the consent

in writing of the At­

torney General or the Solicitor General.

4.(a) Every petition under rule 3(b) or (c) shall contain: F

(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 G

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 H

thereof;

592

A

B

c

D

E

SUPREME COURT REPORTS [1988] 3 S.C.R.

(b) The petition shall be supported

by an affidavit.

( c) where the petitioner relies upon a document

or docu­

ments 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, un­

less 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.

(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.

•i

F

10. The Court may direct the Attorney General or , ~~

Solicitor General to appear and assist the Court. · 9 II!!

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.

G 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, 11981] 2

H S.C.R. 331); he may place the information before the Attorney -

..

I

-)i

•

:1-.

P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.] 593

General and request him to take action; or he may place the iriforma­

tion 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 more

than a mode of layirig the relevant information before the Court for

such action as the Court may deem fit and no proceedings can com­

mence until and unless the Court considers the information before it

and decides to initiate proceedirigs. 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

certairi other. persons as respondents is inappro­

priate for merely lodging the relevant information before the Court

under rule 3(a). It would seem that the proper title of such a proceed-

A

B

c

ing should

be" In re ..... (the alleged contemner)" (see: Karv. Chief D

Justice, I 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,

poirited out that the iriformation had been erroneously

numbered by the office

of the Court as Criminal Original No. 51 of

1978 and concluded with the following observations:

E

"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 F

215 of the Constitution, where the information is not one of

the persons named

ill 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 G

the other judges of the court whether to take any cogni­

zance

of the information. The office to direct to strike off

the information as

"Criminal Original No. 51of1973" and

to file it."

I think that the direction given by the Delhi High Court sets out H

594 SUPREME COURT REPORTS [1988] 3 S.C.R.

A

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.

B 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 bnt 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

C 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 jnstify 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

D him is

that the full text of the speech of 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

E 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 examina-

F

tion. Viewed as a petition under rule 3(c), rule 4 envisages only that

the petiti::m should contain the name, description and place of resi­

dence

of the petitioner(s) and the persons charged. It does not con-

template 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

-•

•

G 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 con-'"

tempt. The petition, as filed here, is a petition for initiating proceed-

ings for contempt of court only against respondent No.

1. Even if the -petitioner has any other cause C?f action against other persons, such

H persons are neither necessary nor even proper parties to the petition.

I

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'

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•

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' '

P.N. DUDA v_ p_s_ SHANKAR [RANGANATHAN, J_J 595

This is especially so because such cause of action is of a purely civil A

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 peti-B

tion.

He cannot seek to get relief against the Attorney General

anil

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 C

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 D

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 E

must be struck off from the array of parties_ I would direct

accordingly.

8. This case itself illustrates the type of 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 F

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

Addi­

tional Solicitor General on the above question_ Some aspects that arise G

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 H

A

B

c

D

E

F

G

H

596

SUPREME COURT REPORTS 11988] 3 S.C.R.

A.

' function. We needed assistance on these issues. If the Attorney

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 contain-

ing recitals which are appropriate only in the case of a person charged

with contempt

of court, though a mention was specifically made that

th~ contempt charge was only against respondent No. 1. The issue of

notices in the prescribed form to the other respondents

was

unjusti­

fied. 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 circum­

stances, 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 juris­

diction 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

;ecalled. 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 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

i

-

,

"

-

'

•

P.N. DUDA v. P.S. SHANKAR (RANGANATHAN, J.J 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."

A

The matter was then referred to the learned Solicitor General, B

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 irrele­

vant 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 C

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 D

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. Venkataramanappa v. D.K. Naikar, A.LR.

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.

E

11. In the first place the role of the Attorney General/Solicitor F

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 G

). 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 screen-

ing complaints from the public to safeguard the valuable time of the

Court. The observations of Lord Reid and Lord Cross in th" H

A

B

c

598 SUPREME COURT REPORTS 11988] 3 S.C.R.

Thalidomide case: A.G. v. Times Newspapers, 11972] A.C. 277, of the

House

of Lords, in a different context, in Gouriet v.

Union of Post

Office Workers, I 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 person to come to the court with a prayer that the

Attorney General/Solicitor General ought not to have given

his con-

sent.

i'or, 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

dis­

charge 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

D 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

E 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,

11974] A.C. 277 at p. 321. Bhagwati, C.J. could have

F 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

G case. Though,

as indicated earlier, it wiII 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

H filing a petition before the Court, the petitioner wrote a letter contain-

I

(

-' ..

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P.N. DUDA v. P.S. SHANK.AR [RANGANATHAN, J.[ 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 purport­

ing 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

A

B

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 C

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 func-D

tions under Section 15 of the Contempt of the Courts Act in

view

of the allegations of lack of impartiality and independ­

ence. These allegations contain a reflection

of bias and

foreclosure on the

part of the Atorney Genera. The

Attorney General declined to investigate the matter since

the allegation

of bias should normally disentitle him from E

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 F

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 G

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 H

A

B

c

D

E

F

G

600 SUPREME COURT REPORTS [1988] 3 S.C.R.

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:

S.L.

(a) This petition, if treated as one filed under Section 15(1) read

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

oounsel for the alleged

contemn er,

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.

Petition dismissed.