Page 1 R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1234 OF 2007

VITUSAH OBEROI AND ORS. ...APPELLANT(S)

VERSUS

COURT OF ITS OWN MOTION ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.1299 OF 2007

J U D G M E N T

T.S. THAKUR, CJI.

1.In these appeals, the appellants call in question the

correctness of an order dated 11

th

September, 2007 passed

by a Division Bench of the High Court of Delhi whereby the

appellants have been found guilty of contempt and directed

to remain present in person before the High Court for being

heard on the quantum of sentence to be awarded to them.

1

Page 2 Facts necessary for appreciating the challenge mounted by

the appellants may be summarized as under:

2.Appellants No.1 and 2 are the Editor and City Editor

respectively of Mid Day, an English Daily Newspaper, with a

large circulation in the National Capital Region. Appellant

No.3 happens to be the Printer and Publisher of the papers

while appellant No.4 is a Cartoonist working for the said

paper. The genesis of the suo motu contempt proceedings

initiated by the High Court of Delhi lies in a story that

appeared in ‘Mid Day’ in its issue dated 2

nd

May, 2007 under

the title “Injustice”. The substance of the publication

brought to light the alleged misuse of the official residence

of Justice Sabharwal who demitted office as Chief Justice of

India on 13

th

January, 2007, by the same being shown as

the registered office of three companies promoted by Justice

Sabharwal’s sons. A second story published on 18

th

May,

2007 in Mid Day pointed out that Justice Sabharwal’s son

had entered into a partnership with shopping malls and

commercial complex developers just before Justice

Sabharwal passed orders for sealing of commercial

2

Page 3 establishments running in residential areas in different parts

of Delhi. This, according to the story, benefitted the

partnership business of Justice Sabharwal’s sons. On 19

th

May, 2007 came a third story that quoted some senior

lawyer’s saying that if the facts about Justice Sabharwal’s

sons’ partnership business benefitting from the orders of

Justice Sabharwal’s Bench were true, then Justice Sabharwal

should not have heard the case. The paper also carried in

the same issue a cartoon by Mohd. Irfan Khan, appellant

No.4 showing as if Justice Sabharwal’s family had benefitted

from the orders passed by Justice Sabharwal’s Bench.

3.It was in the above backdrop that Shri R.K. Anand, an

advocate practicing in Delhi High Court appears to have

placed a copy of the newspaper dated 18

th

May, 2007 before

a Division Bench of the High Court of Delhi on 21

st

May, 2007

to draw the attention of the Court about the article published

in the said paper maligning the former Chief Justice of India

and tending to lower the image of the judiciary in the eyes

of the common man. Prima facie satisfied that the news

item was objectionable and tended to lower the image of

3

Page 4 judiciary in the eyes of the common man, the High Court

initiated suo-motu contempt proceedings and issued show

cause notices to appellants No.1 to 3. On 25

th

May, 2007

Shri Anand appears to have filed another copy of Mid Day

newspaper dated 19

th

May, 2007 before the High Court

which carried the cartoon drawn by the appellant No.4, the

paper’s cartoonist. The High Court found the same also to

be objectionable and issued notice even to appellant No.4 to

show cause why contempt proceedings may not be initiated

against him.

4.In response to the notices served upon them, the

appellants filed their objections supported by affidavits. In

the affidavit filed by appellant No.1-Editor of Mid-day it was,

inter alia, stated that all the facts published in the paper

were supported by unimpeachable documents and were

true. A supplementary affidavit filed on behalf of the

appellant No.1 gave some more details about a company

promoted by Justice Sabharwal’s sons and the documents

relevant thereto. An affidavit sworn by appellant No.4, the

cartoonist was also filed explaining his position. This was

4

Page 5 followed by additional affidavits filed by the appellants on

21

st

August, 2007 in which the appellants tried to justify

their publications on the ground that the said publications

were intended to bring to light an impropriety committed

only by Justice Y.K. Sabharwal and that the same was not

intended either to malign or undermine the judiciary in this

country or any other Judge in the Supreme Court of India or

any other Court for that matter. The affidavits in particular

stated:

“The Article which was published was intended

to bring to light such impropriety by Mr. Y.K.

Sabharwal and was not intended at all to

undermine or malign the Judiciary of India or

any other Judge of the Hon’ble Supreme Court of

India or of may other court in India. If our

articles created any impression on anyone that

we were or were intending to malign the

judiciary or any other Judge, we sincerely

apologise for the same.”

I most respectfully submit that I have the

utmost regard and respect for the majesty of

law and the Court of law. The Article in question

published by Mid Day was not intended to

undermine the authority of law or lower the

image of judiciary or with any intention of

interfering with the administration of Justice.”

5.The explanation offered by the appellants

notwithstanding the High Court has by the order impugned

5

Page 6 in these appeals found the appellants guilty of contempt and

directed them to remain present in person for being heard

on the question of quantum of sentence that may be

awarded to them. The present appeal assails the correctness

of the said order.

6.Appearing for the appellants M/s. Shanti Bhushan and

Prashant Bhushan raised a short point in support of the

appeal. They contended that the High Court could under

Article 215 of the Constitution of India no doubt initiate

proceedings and punish for its own contempt, but it could

not, according to the learned counsel, initiate proceedings or

punish for the contempt of the Supreme Court. It was urged

that even under Section 10 of the Contempt of Courts Act,

1971, the High Court could punish only for its own contempt

or the contempt of a Court subordinate to it. There was no

provision, argued the learned counsel, either in the

Constitution of India or in the Contempt of Courts Act, 1971

that empowered the High Court to take cognizance of the

contempt of a superior Court like the Supreme Court of

India. Inasmuch as the High Court had failed to appreciate

6

Page 7 the scope of the powers of contempt exercisable by it, it had

fallen in palpable error that required to be corrected. It was

contended that while the appellants had pleaded truth as a

defense to the charge of contempt yet regardless whether

the publication could be justified on the ground of truth

under Section 30(b) of the Act, the impugned order passed

by the High Court was liable to be set aside.

7.The genesis of the suo motu proceedings initiated by

the High Court, as noticed earlier, lay in the publication of

the articles, stories and write ups questioning the propriety

of certain orders passed by a two-Judge bench of this Court

of which Justice Y.K. Sabharwal was the Presiding Judge.

The substance of the offending publication was that Justice

Sabharwal had by reason of the orders passed by the bench

benefitted the partnership business of his sons in real estate

development in and around Delhi. The text and the context

of the said publications was focused entirely on the question

whether Justice Sabharwal should have heard the matters

and passed sealing orders of commercial properties in

residential areas of Delhi which orders were perceived to be

7

Page 8 beneficial to the real estate business of his sons. What is,

therefore, undeniable is that the publications were actually

seen as contemptuous vis-a-vis the Supreme Court. No part

of the publications referred to the High Court of Delhi or any

other High Court for that matter. The publications did not

refer to any Judge or any order of any Court subordinate to

the High Court of Delhi. Initiation of proceedings by the

High Court in such circumstances was, it is evident, meant

to vindicate the Supreme Court more than the High Court

who initiated those proceedings. The question is whether the

High Court could do so. The appellants argued and, in our

opinion, rightly so that the Supreme Court was and is

competent to punish for contempt of itself. This is evident

from Article 129 of the Constitution which reads as under :

“Article 129

129. Supreme Court to be a court of record: The

Supreme Court shall be a court of record and shall

have all the powers of such a court including the

power to punish for contempt of itself.”

8.So also Article 215 of the Constitution empowers the

High Court to punish for its contempt. That provision reads:

8

Page 9 “Article 215

High Courts to be courts of record: Every High

Court shall be a court of record and shall have all the

powers of such a court including the power to punish

for contempt of itself.”

9.The provisions of Section 10 of the Contempt of Courts

Act, 1971 also empower the High Court to punish for its own

contempt or the contempt of Courts subordinate to it.

Section 10 reads:

“ 10. Power of High Court to punish

contempts of subordinate courts. —Every

High Court shall have and exercise the same

jurisdiction, powers and authority, in accordance

with the same procedure and practice, in respect

of contempt of courts subordinate to it as it has

and exercises in respect of contempts of itself:

Provided that no High Court shall take

cognizance of a contempt alleged to have been

committed in respect of a court subordinate to it

where such contempt is an offence punishable

under the Indian Penal Code (45 of 1860).”

10.There is, from a plain reading of the above, nothing in

the Contempt of Courts Act, 1971 or in Article 215 of the

Constitution which can be said to empower the High Court to

initiate proceedings suo-motu or otherwise for the contempt

9

Page 10 of a superior Court like the Supreme Court of India. As a

matter of fact, the Supreme Court under Article 129 and

High Court under Article 215 of the Constitution are both

declared to be Courts of Record. One of the recognised

attributes of a court of record is the power to punish for its

contempt and the contempt of courts subordinate to it. That

is precisely why Articles 129 and 215, while declaring the

Supreme Court and the High Courts as Courts of Record,

recognise the power vested in them to punish for their own

contempt. The use of the expression “including” in the said

provisions is explanatory in character. It signifies that the

Supreme Court and the High Courts shall, as Courts of

Records, exercise all such powers as are otherwise available

to them including the power to punish for their own

contempt. Whether or not the power to punish for contempt

of a subordinate court was an attribute of a court of record

fell for consideration of this Court in Delhi Judicial Service

Association vs. State of Gujarat (1991) 4 SCC 406 .

The argument there was that the Supreme Court could not

initiate contempt proceedings based on an incident that

10

Page 11 involved a subordinate court like a Chief Judicial Magistrate

working in the State of Gujarat. That contention was

examined and rejected by this Court. It was held that the

language employed in Article 129 indicated that the

Supreme Court is a Court of Record and was entitled not

only to punish for its own contempt but to do all that which

is within the powers of a Court of Record. This Court held

that since the Constitution has designed the Supreme Court

as a Court of Record, Article 129 thereof recognises the

existing inherent power of a Court of Record in its full

plenitude including the power to punish for its own contempt

and the contempt of its subordinate. The Court said:

“29. Article 129 declares the Supreme Court a

court of record and it further provides that the

Supreme Court shall have all the powers of such

a court including the power to punish for

contempt of itself (emphasis supplied). The

expression used in Article 129 is not restrictive

instead it is extensive in nature. If the Framers

of the Constitution intended that the Supreme

Court shall have power to punish for contempt of

itself only, there was no necessity for inserting

the expression “including the power to punish for

contempt of itself.” The Article confers power on

the Supreme Court to punish for contempt of

itself and in addition, it confers some additional

power relating to contempt as would appear

from the expression “including.” The expression

“including” has been interpreted by courts, to

11

Page 12 extend and widen the scope of power. The plain

language of the Article 129 clearly indicates that

this Court as a court of record has power to

punish for contempt of itself and also something

else which could fall within the inherent

jurisdiction of a court of record. In interpreting

the Constitution, it is not permissible to adopt a

construction which would render any expression

superfluous or redundant. The courts ought not

accept any such construction. While construing

Article 129, it is not permissible to ignore the

significance and impact of the inclusive power

conferred on the Supreme Court. Since, the

Supreme Court is designed by the Constitution

as a court of record and as the Founding Fathers

were aware that a superior court of record had

inherent power to indict a person for the

contempt of itself as well as of courts inferior to

it, the expression “including” was deliberately

inserted in the Article. Article 129 recognised

the existing inherent power of a court of record

in its full plenitude including the power to punish

for the contempt of inferior courts. If Article 129

is susceptible to two interpretations, we would

prefer to accept the interpretation which would

preserve the inherent jurisdiction of this Court

being the superior court of record, to safeguard

and protect the subordinate judiciary, which

forms the very back bone of administration of

justice. The subordinate courts administer

justice at the grass root level, their protection is

necessary to preserve the confidence of people

in the efficacy of Courts and to ensure unsullied

flow of justice at its base level.”

11.The power to punish for contempt vested in a Court of

Record under Article 215 does not, however, extend to

punishing for the contempt of a superior court. Such a

12

Page 13 power has never been recognised as an attribute of a court

of record nor has the same been specifically conferred upon

the High Courts under Article 215. A priori if the power to

punish under Article 215 is limited to the contempt of the

High Court or courts subordinate to the High Court as

appears to us to be the position, there was no way the High

Court could justify invoking that power to punish for the

contempt of a superior court. That is particularly so when

the superior court’s power to punish for its contempt has

been in no uncertain terms recognised by Article 129 of the

Constitution. The availability of the power under Article 129

and its plenitude is yet another reason why Article 215 could

never have been intended to empower the High Courts to

punish for the contempt of the Supreme Court. The logic is

simple. If Supreme Court does not, despite the availability

of the power vested in it, invoke the same to punish for its

contempt, there is no question of a Court subordinate to the

Supreme Court doing so. Viewed from any angle, the order

passed by the High Court appears to us to be without

jurisdiction, hence, liable to be set aside.

13

Page 14 12.We, accordingly, allow these appeals, set aside the

judgment of the High Court and discharge the rule issued by

the High Court. The parties to bear their own cost.

..……………………..CJI.

(T.S. THAKUR)

.…….......................J.

(A.M. KHANWILKAR)

New Delhi;

January 2, 2017.

14