Full Judgment Text
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PETITIONER:
DR.D.C. SAXENA
Vs.
RESPONDENT:
HON’BLE THE CHIEF JUSTICE OF INDIA
DATE OF JUDGMENT: 19/07/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SINGH N.P. (J)
BHARUCHA S.P. (J)
CITATION:
1996 SCC (7) 216 JT 1996 (6) 529
1996 SCALE (5)233
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
BHARUCHA, J.
I have had the advantage of reading the judgment and
order proposed by my learned Brother, the Hon’ble Mr.
Justice K. Ramaswamy. I agree with the order but, very
respectfully, now set out my reasons therefor.
The alleged contemnor, Dr. D.C. Saxena, has filed a
writ petition (C.W.P. No.432/95) in this Court in the public
interest seeking to recover from the then Prime Minister,
Mr. P.V. Narasimha Rao, expenditure incurred for the private
use of Indian Air Force aircraft and helicopters and
consequential reliefs. The alleged contemnor appeared in
person when the writ petition was called out on 17th July,
1995, for admission before a Bench comprised of the Chief
Justice of India, the Hon’ble Mr. Justice A.M. Ahmadi, and
the Hon’ble Mr. Justice S.C. Sen. The Bench sent for the
Solicitor General for India and directed him to verify the
contents of the writ petition, which was ordered to be
listed after two weeks. On 7th August, 1995, the writ
petition was listed before a Bench comprised of the Chief
Justice of India and S.C. Sen and K.S. Paripoornan, JJ. The
Solicitor General placed the original record before the
Court and, after perusing the same and hearing the alleged
contemnor, the writ petition was summarily dismissed.
The alleged contemnor filed a second writ petition
(No.D17209/95) making the Chief Justice of India the
respondent thereto. He prayed that it be declared that the
respondent was unfit to hold the office Chief Justice of
India; that the respondent be stripped of his citizenship;
that an F.I.R. be registered against the respondent for
committing forgery and fraud; for a direction that the
respondent be prosecuted under the Prevention of Corruption
Act, and for other reliefs. The alleged contemnor submitted
that it was improper for the respondent to have heard the
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earlier writ petition and that the respondent had attempted
but failed to browbeat the alleged contemnor; the dismissal
of the earlier writ petition without recording the reasons
therefor invited the commit, "So much for the vaunted
adherence to the twin principles of transparency and
accountability". The ground for the relief which the alleged
contemnor sought, inter alia, were:
-"for causing fabrication of court
proceedings 7th August,
1995............."
-"for wilfully and advertently
violating the fundamental rights of
not only the petitioner as an
individual, but that of the people
of India.........."
-"for violation of the sacred oath
of office by the respondent:;
-"for deliberate and wilful failure
to perform fundamental duties and
stultifying their performance by
the petitioner"; and
-"for allowing his son who is
practising in the Supreme Court to
stay with him in his official
residence, and presumably misusing
official facilities and prestige of
office of Chief Justice of India."
The alleged contemnor added that during the pendency of
the writ petition, the respondent "may be advised to proceed
on leave, so that he may not directly or indirectly
influence any of the judges hearing the matter".
The second writ petition came up for admission before a
Bench comprised of Verma, J. and two of us (N.P. Singh and
S.P. Bharucha, JJ). After hearing the alleged contemnor, the
second writ petition was dismissed, the following order
being passed :
"The several averments in the writ
petition are scandalous and it is
surprising that the petitioner, who
is, said to be a Professor in a
University, has chosen to draft and
file such a writ petition. His
understanding of the meaning of
Article 32 of the Constitution, is
to say the least, preposterous. The
allegations made are reckless and
disclose irresponsibility on the
part of the petitioner. This writ
petition is wholly misconceived and
is an abuse of he process of the
Court. The petition has no merit.
The writ petition is, therefore,
dismissed.
In view of the attitude of the
petitioner even at the hearing,
when he persisted in this stand
and, on our asking him, reiterated
that he stood by the scandalous
averment made therein consider it
our duty to issue to the petitioner
a notice to show cause why
proceedings to punish him for
contempt of this Court should not
be initiated against him. The
Registry to take the necessary
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steps for registering the matter as
a contempt petition. The petitioner
who is present in person is given
notice of the contempt petition. He
is required to file his reply
within four weeks to show cause why
proceedings for contempt should not
be initiated against him. We
request the learned Solicitor
General to assist the Court in this
contempt matter.
List the matter after notice of the
date filed by Registry is given to
Dr. D.C. Saxena and the Solicitor
General."
Pursuant to the order the alleged contemnor was served
with a contempt notice, which drew his attention to the
following contents of the second writ petition:
i) Page 4 Para-9
".... it was improper for Justice
Ahmadi to hear it."
ii) Page 5 Para-10
"That Justice Ahmadi’s utmost
reluctance to perform his
fundamental- duties and
constitutional obligations was
apparent, when after failing to
browbeat the
petitioner,................... "
iii) Page 6 Para-14
"................ To this Justice
Ahmadi responded that he (the
Solicitor General) was there to
assist the Court, contrary to the
evidence of the Court proceedings.
iv) Page 6 Para-15
"............... and without
recording reasons for dismissing
the petition. So much for the
vaunted adherence to the twin
principles of transparency and
accountability."
v) Page 6 Para-17
".............. The course of
action by Justice Ahmadi, in
dealing with the grouse of the
petitioner and dismissing his
petition, is totally unjust,
unfair, arbitrary and unlawful. It
is in flagrant violation of the
mandates of Article 14 of the
Constitution, which. "runs like a
golden thread" through it and is
the foundation of justice and fair
play......... "
vi) Page 7 Para-18(c)
"For causing fabrication of court
proceedings of 7 August, 1995, and
not mentioning the fact of
appearance of the Solicitor
General, would Justice Ahmadi not
be liable to prosecution under the
relevant provisions of the Indian
Penal Code, in consonance with the
time-honoured maxim, "Be you ever
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so high, the law is above you?"
vii) Page 7 Para-18(d)
"Can Justice Ahmadi be allowed to
take shelter behind the cloak of
judicial immunity, in the facts and
circumstances of the instant case,
particularly when unlike the
President of India, who cannot be
impleaded in civil or criminal
proceedings" during
xi> Page 8 Para-18(h)
"For allowing his son who is
practising in the Supreme Court, to
stay with him in his official
residence, and presumably misusing
official facilities and prestige of
office of Chief Justice of India,
is not Justice Ahmadi liable to be
prosecuted under the Prevention of
Corruption Act, in view of the
ratio decidendi of Veeraswami’s
case?"
xii) Page 8 Para-18(i)
"Is Justice Ahmadi not liable to
pay from his pocket not only the
legitimate costs incurred by the
petitioner in C.W.P. No.432 of 1995
and the present petition, but also
the loss caused to the public
exchequer by non-payment of dues
with 18% interest by Shri P.V.N.
Rao?"
xiii) Page 8 7th line from the
bottom
".......... excluding any Judge who
owes his elevation to the apex
Court to Justice Ahmadi. Further,
during its pendency. Justice Ahmadi
may be advised to proceed on leave,
so that he may not directly or
indirectly influence any of the
Judges hearing the matter."
his term of office," he enjoys no
such constitutional protection?
viii) Page 7 Para-18(e)
"For wilfully and advertently
violating the fundamental rights of
not only the petitioner as an
individual, but that of the people
of India, who are ultimately
sovereign, as stated in the
Preamble to the Constitution, has
not Justice Ahmadi forefeited any
legal protection, even it if were
available to him?"
ix) Page 8 Para-18(f)
"What are the legal consequences of
the violation of the sacred oath of
office by Justice Ahmadi?"
x) Page 8 Para-18(g)
"For deliberate and wilful failure
to perform his fundamental duties
and stultifying their performance
by the petitioner, should not
Justice Ahmadi be stripped of his
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citizenship, because duties alone
can confer the corresponding legal
and constitutional rights?"
xiv) Page 9 Prayer
(a) Declare the respondent unfit to
hold office as Chief Justice of
India;
(b) Strip the respondent of his
citizenship;
(c) Direct the registration of an
F.I.R. against the respondent under
the Indian Penal Code for
committing forgery and fraud;
(d) Direct the respondent’s
prosecution under the Prevention of
Corruption Act.
The alleged contemnor filed written submissions in
reply to the contempt notice. His first submission was that
the Bench which had heard and dismissed the second writ
petition had been constituted by the respondent, who had
thereby become a judge in his own cause. The second writ
petition was, accordingly, not listed before a court
competent to dispose it of, so that the order of its
dismissal was non est, and it was still deemed to be
pending. The contempt notice was, therefore, premature. The
written submissions then dealt with the portions of the
second writ petitions which had been indicated in the
contempt notice and reiterated the same, except only that it
was submitted that the allegation about fabrication of the
court proceedings of 7th August, 1995, was "somewhat
unhappily worded". It was submitted thereafter that the
Contempt of Courts Act was a legacy of British imperialism
and, while appropriate to a "banana republic", was
incompatible with a democratic, people’s polity; it was a
law-less law because it fused the offices of the prosecutor
and the judge and "belongs with the infamous Spanish
Inquisition". After his signature at the foot of the written
submissions, the alleged contemnor added in hand, "N.B. If
some passages seem strident or pungent, the defendant is
willing to suitably modify them."
The contempt notice came up before this Bench on 15th
April, 1996. The following order was then passed:
"Pursuant to the notice issued by
this Court the Contemnor Dr. D.C.
Saxena is present today in person.
He has stated that he would modify
the offending portions noted in the
show cause notice in Item (ii),
(iv), (vi), (vii), (viii), (x),
(xii), (xiii) and wishes to
withdraw unconditionally item xiv,
paras B and C.
The learned Solicitor General has
pointed out that even if the
Contemnor withdraws or files
statement in the modified form what
the Court required to do is whether
his statements made in the writ
petition originally filed
constitute contempt of the Court or
not and his modification of the
above statements would not be of
material reliance for
consideration. Since the contemnor
seeks time to submit the show cause
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in the modified language which he
wishes to place before the Court,
at his request the matter is
adjourned to May 2, 1996 at 2.00
p.m. The Registry is directed to
supply complete set of papers to
learned Solicitor General."
Pursuant to this order the alleged contemnor submitted
a statement of modifications. In regard to Item (ii) of the
contempt notice, the amended version read :
"The petitioner discerned
reluctance on the part of the
presiding judge to allow the relief
claimed, which was in public
interest, and actuated by the
desire to "preserve and protect
public property," without any
personal malice."
In respect of Item (iv), it read :
"That Justice Ahmadi ultimately
dismissed the petition, observing
that the Government of India was
capable of realising the dues from
Shri Rao (which it had not done in
two years) and without recording
the reasons for dismissing the
petition, for which lapse it has
often berated High Courts, in
pursuance of the twin principles of
transparency and accountability."
In respect of Item (vi), it read:
"For inaccurate recording of the
court proceedings of 7 August,
1995, and not mentioning even the
fact of appearance of the Solicitor
General for the respondents, what
responsibility would ensue on the
presiding judge, who dictated
them?"
In respect of item (vii), it read :
"When under the Constitution,
judges of superior courts do not,
unlike the President of India,
enjoy total immunity during their
term of office, can the presiding
judge be allowed to make such a
claim for wrong-doing?"
In respect of item (viii), it read
:
"For violating the fundamental
rights of not only the petitioner,
as an individual, but also that of
the people of India, who are
ultimately sovereign, as stated in
the preamble to the Constitution,
has not Justice Ahmadi sent wrong
signals to the entire judiciary, of
which he is the head?"
In respect of item (x), it read :
"For failure to perform his
fundamental duties and impeding
their performance by the
petitioner, should not Justice
Ahmadi be regarded as accountable
to the people of India, because
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duties alone can confer the
corresponding legal and
constitutional rights?"
In respect of item (xii), it read :
"Who would be liable to reimburse
the legitimate costs incurred by
the petitioner in C.W.P. No.432 of
1995, and the present petition, and
the huge loss caused to the public
exchequer, because of persistent
default in paying them, by Shri
P.V. Narasimha Rao, with 18%
interest?"
In respect of item (xiv), it read :
"(Prayers) (b) and (c) may kindly
be treated as deleted."
The matter was heard on 2nd May, 1996. The Solicitor
General, appearing amicus curiae, suggested at the outset
that the alleged contemnor would be advised to take legal
counsel before proceeding further. but the suggestion was
not heeded. The Solicitor General drew our attention to what
has been set out above. He submitted that the averments in
the second writ petition were made and remained on the
record; they were ex-facie contumacious. The alleged
contemnor had sought to delete some of these averments and
modify some others but had expressed no regret for what he
had already said. Even the modified averments were
contumacious.
The alleged contemnor submitted that he had the
greatest respect for this Court and that he had expressed
the same in his reply to the contempt notice. The
modifications that he had made indicated his own
fallibility, for he had used exaggerated language in the
second writ petition. He submitted that the certified copy
of the first order in the earlier writ petitions did not
indicate that the Solicitor General had appeared amicus
curiae. He drew attention to the judgment of this Court in
C.Ravichandran Iyer vs. Justice A.M. Bhattacharjee & Ors.,
1995 (5) S.C.C. 457, in support of his submission that the
respondent to the second writ petition was liable to be
prosecuted under the Prevention of Corruption act for
allowing his son "who is practising in the Supreme Court, to
stay with him in his official residence, and presumably
misusing official facilities and prestige of office of Chief
Justice of India". He said that the factual basis for this
submission were articles in a newspaper and a news magazine.
He submitted that he had acted for the public good and that
Sections 4 & 5 of the Contempt of Courts Act applied. He
also contended that the Contempt of Courts Act was violative
of the Constitution, but did not enlarge upon the
contention.
Article 129 of the Constitution of India provides that
the Supreme Court shall be a court of record and shall have
all the powers of such a court including the power to commit
for contempt of itself. Any act done or writing published
which is calculated to bring a court or a judge into
contempt or to lower his authority or to interfere with the
due course of justice is a contempt of the court: scurrilous
abuse of a judge or court, or attacks on the personal
character of a judge are acts of contempt. ( See R. Vs.
Grey, (1900) 2 Q.B. 36). "The object of the discipline
enforced by the court in the case of contempt of court is
not to vindicate the dignity of the court or person of the
judge, but to prevent undue interference with the
administration of justice". ( Helmore Vs. Smith, (1886) 35
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Ch. D. 449). This is not to say that judicial decisions may
not be subjected to criticism; they can, but not the judges
who took them. Lord Atkin in Ambard vs. A.G. for Trinidad
and Tobago, (1936) A.C. 322, said: "The path of criticism is
a public way: the wrong headed are permitted to err therein:
provided that members of the public abstain from imputing
improper motives to those taking part in the administration
of justice, and are genuinely exercising a right of
criticism, and not acting in malice or attempting to impair
the administration of justice, they are immune. Justice is
not a cloistered virtue: she must be allowed to suffer the
scrutiny and respectful, even though outspoken, comments of
ordinary men." In Re. A.G. of Canada and Alexander et al,
(1976) 65 D.L.R. (3rd) 608, a newspaper was held by the
Supreme Court of the Northwest Territories of Canada to have
committed contempt for alleging a "cover-up" by court
officials, participated in by a Supreme Court judge, to
shield a public figure from adverse publicity. In New
Zealand a solicitor was held by the Court of Appeal to have
committed contempt for alleging that in a previous case
judges had been guilty of forgery, fabrication of evidence
and partiality; in the court’s opinion, "there could not be
a clear case of a serious contempt of court................
" (Re.Wiseman, (1969) NZLR 55). The contempt jurisdiction is
not, therefore, to be found in "banana republics" but in
democracies that abide by the rule of law. It is intended to
uphold the authority and dignity of the courts of law which,
on behalf of the State, deliver Justice and protect the
public confidence that is reposed in them.
The contempt notice to the alleged contemnor pursuant
to the order of dismissal of the second writ petition was
issued in exercise of the power of this Court, recognised by
Article 129 of the Constitution, to punish for contempt of
itself. The issue of the constitutionality of the Contempt
of Courts Act is, therefore, not germane.
The earlier writ petition came up for admission on 17th
July, 1995. The Solicitor General was, admittedly, called by
the Bench and asked to look into the papers. The minutes
show the Solicitor General as having appeared "for the
respondent". Since the Solicitor General appeared on being
called by the Bench, plainly, he could not have appeared
"for the respondent." His appearance was wrongly recorded.
The matter was listed again on 7th August 1995. On that
occasion the appearance of the Solicitor General was not
shown in the minutes, but, admittedly, he appeared and
showed to the Bench the original record. After seeing it and
hearing the alleged contemnor, the earlier writ petition was
dismissed. According to second writ petition, the alleged
contemnor asked the Bench "whom the Solicitor General was
representing, since he could not appear for a private party,
namely, the President of the Congress Party. To this Justice
Ahmadi responded that he was there to assist the court
contrary to the evidence of the court proceedings." Upon
this basis the alleged contemnor stated in the second writ
petition that the respondent (the Chief Justice of India)
had caused "fabrication of court proceedings on 7th August,
1995 and was, therefore, liable to prosecution under the
relevant provisions of the Indian Penal Code." The relevant
prayer of the second writ petition was that an F.I.R. be
registered against the respondent under the Indian Penal
Code for committing "forgery and fraud". The alleged
contemnor, who is, I understand, a Professor of English,
could have had no doubt of the grave import of the words
’fabrication’, ’forgery’ and ’fraud’. He also knew them to
be offences under the Indian Penal Code". The modification
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made by the alleged contemnor of the averments in this
regard is that the respondent was responsible for
"inaccurate recording of the proceedings of 7th August,
1995," and the prayer is sought to be deleted. The
modification does not speak of inadvertant inaccurate
recording or express any regret for the allegations of
fabrication, forgery and fraud. The allegation of inaccurate
recording, as made, suggests that such recording was
deliberate and there is, therefore, no more than some
moderation of language. The allegations of fabrication,
forgery, fraud and inaccurate recording of proceedings are
made in respect of a judge in the performance of his
judicial function. They are of a most serious character.
They are intended to lower the authority of and respect for
the court and the office of the judge.
Upon the same facts there are allegations in the second
writ petition that the respondent violated his oath of
office and failed to perform his fundamental duties. The
summary dismissal of a writ petition by a judge is not a
violation of his oath or fundamental duties; at worst, it
might be a judicial error. The dismissal of a writ petition
cannot warrant the charge of violation of his oath by a
Judge; and, in my book, no more serious charge against a
judge can be made. What the alleged contemnor conveniently
does not mention account is that the three learned judges
(including the respondent) who constituted the Bench found
no merit in the earlier writ petition and dismissed it. The
suggestion of the alleged contemnor in paragraph 15 of the
second writ petition that the earlier writ petition was
dismissed by the respondent suggests that the other two
judges counted for nothing, and this is also contempt. The
allegations are scurrilous and scandalise the court.
It is the duty of the Chief Justice of a court to
assign judicial work to his brother judges. It was,
therefore, the duty of the respondent to assign the second
writ petition to a bench to hear it. By doing so he did not,
as is alleged, become a judge in his own cause. It is
contempt to imply, as the alleged contemnor does, that the
respondent would assign it to a bench which would not pass
an order adverse to him. It is also contempt to imply that
judges would be so amenable. To plead that the Bench that
heard the second writ petition could not have heard it and,
therefore, could not have dismissed it and that it is deemed
to be still pending is to add to the contempt. These
allegations are also aimed at bringing the administration of
justice into disrepute.
The second writ petition alleged that the respondent
had allowed "his son, who is practising in the Supreme
Court, to stay with him in his official residence and
presumably mis-using official facilities and prestige of
office of Chief Justice of India" and sought his prosecution
under the Prevention of Corruption Act. The allegation and
prayer are not sought to be modified. The allegation is not
in any way connected with the dismissal of the earlier writ
petition. It is brought in for no reason other than to
vilify the respondent in connection with his official duties
and position. How irresponsible the allegation is shown by
the fact that, according to the alleged contemnor himself,
it is based only upon what he read in articles in a
newspaper and a news magazine.
I have dealt with what seem to me to be the principal
contempts; I agree broadly with the discussion by brother
Ramaswamy, J. of the other allegations made by the alleged
contemnor.
The alleged contemnor has sought the protection of
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Sections 4 and 5 of the Contempt of Courts Act. What he has
written in the second writ petition is neither a fair and
accurate report of the proceedings of the earlier writ
petition nor a fair criticism thereof. The principle
underlying these provisions is, therefore, not applicable.
For the reasons aforesaid, I find the alleged contemnor
to be in contempt.
Having regard to the gravity of the contumacious
statements, the recklessness with which they are made, the
intemperateness of their language, the mode of their
publication in a writ petition in this court and the alleged
contemnor’s influential position in society, I do not think
that punishment only in the nature of a fine would be
adequate. A contemnor such as the present must also undergo
imprisonment.
Accordingly, the alleged contemnor is convicted for
contempt and sentenced to undergo simple imprisonment for a
period of three months and to pay a fine in the sum of
Rs.2,000/- (Rupees two thousand). In default of such payment
within three months, the alleged contemnor shall undergo
further simple imprisonment for a period of one month.