Full Judgment Text
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PETITIONER:
DR. D.C. SAXENA
Vs.
RESPONDENT:
HON’BLE THE CHIEF JUSTICE OF INDIA
DATE OF JUDGMENT: 19/07/1997
BENCH:
K. RAMASWAMY
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
K. Ramaswamy, J.
In a clash of competing interests in constitutional
contours, this case calls to strike a balance between the
freedom of speech and expression, a salutary right in a
liberal democratic society and paramount countervailing duty
to maintain public confidence in the administration of
justice. The petitioner has initiated public interest
litigation under Article 32 of the Constitution to direct
Sri P.V. Narasimha Rao, the President of Indian National
Congress and the former Prime Minister of the country to pay
a sum of Rs.8.29 lakhs and odd said to be due to the union
of Indian for use of Indian Air Force aircraft or
helicopters from October 1, 1993 to November 30, 1993. When
writ Petition No. 432/95 was posted for hearing on July
17,1995 before the learned Chief Justice of India and
brother Justice S.C. Sen the solicitor General for India,
Shri Dipankar P. Gupta was sent for and the Court directed
him to have the averments verified to be correct and
directed the petition to be listed after two weeks. On
August 7,1995, the writ petition came before the Bench
comprising the learned CJI, Justice S.C. Sen and Justice
K.S. Paripoornan. It is not in dispute that the Solicitor
General had placed the record before the Court and upon
perusal thereof and after hearing the petitioner-in-person,
the Bench summarily "dismissed"" the writ petition which had
triggered the petitioner to file yet another writ petition,
this time against the learned Chief Justice of India,
Justice A.M. Ahmadi. The Registry raised objections for its
maintainability but, at eh insistence of the petitioner, it
was posted, with office objections, for hearing, as
unregistered Writ petition (c) NO. -17209/95 on January
13,1996 before a Bench of three learned Judges, viz. Justice
J.S. Bharuchal. The petitioner, again appearing in person,
persisted to justify the averments made against the learned
CJI, Justice A.M. Ahmadi in the writ petition. In spite of
the Court having pointed out that the averments were
scandalous, the proceeding of the Court did indicate that
the petitioner reiterated that he "stood by the averments
made therein" and sought for declaration [1] that Justice
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A.M. Ahmadi is unfit to hold the office as Chief Justice of
India; [2] that he should be tripped of his citizenship; [3]
to direct registration of an FIR against him under various
provisions of Indian penal Code for committing forgery and
fraud and under the prevention of Corruption Act; (4) to
direct prosecution of him under the prevention of Corruption
Act; (5) to direct him to defray from his personal pocket
the expenses incurred by the petitioner in filing the two
writ petitions, i.e., W.P. No. 432/95 and the second writ
petition; (6) to direct justice A.M. Ahmadi to reimburse
from his pocket to the public exchequer the entire loss
caused to the State,. as a consequence of non-payment of the
dues by Sri P.V. Narasimha Rao with interest at 18% per
annum and (7) other consequential directions.
After hearing the petitioner, the Bench dismissed the
second writ petition with the order as under:
"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 the process of the
Court. The writ petition has no
merit.
The writ petition is, therefore,
dismissed.
In view of the attitude of the
petitioner even at the hearing,
when the persisted in this stand
and, on our asking him, reiterated
that he stood by the scandalous
averment made therein, we 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
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 wheels 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 fixed by Registry is given to
Dr. D.C. Saxena and the Solicitor
General."
While dismissing the petition, this Court observed in
the later part of the order the petitioner’s conduct in his
persistence to stand by the scandalous averments made
against the learned Chief Justice of India. This Court was
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constrained to initiate contempt proceedings and enlisted 14
instances which would prima facie constitute contumacious
conduct of the petitioner to scandalise the Court. In the
meanwhile, the petitioner wrote in a newspaper criticising
Justice J.S. Verma. Resultantly, Justice J.S. Verma reclused
himself from the Bench. Thus the matter was posted before
this Bench.
On April 12,1996, the petitioner filed his reply to the
show cause notice styling the same as "preliminary
submissions" and reiterated his averments, which, as pointed
by this Court, would constitute scandalisation of the Court
and yet he had given his justification for accusing the
chief Justice of India. However, at the end, as a foot-note,
he has written in his own hand-writing as under:
"N.B. If some passages seem
strindent or pungent, the defendant
is willing to suitably modify
them."
On April 14,1996, this court passed the order as under;
"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 statements would not be of
material relevance for
consideration. Since the contemnor
seeks time to submit the show
contemnor seeks time to submit the
show cause 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."
When the case came up for hearing on May 2, 1996, the
petitioner filed amended portions to substitute the
averments made, at proper places, in the second unnumbered
writ petition. We have heard learned Solicitor General as
amicus curiae and the petitioner-in-person. Before opening
the case, the solicitor General, in view of the seriousness
of the averments made by the petitioner in the petition
filed against the chief Justice of India, and in view of his
stand in both the preliminary submissions to the contempt
notice and the revised averments made in the writ petition,
suggested that it would be advantageous for the petitioner
to have consultation and legal assistance of any counsel of
his choice and to revise his stand, but the petitioner
remained silent and got along with the case.
The learned solicitor General stated that on July 17,
1995, the Court had sent for and called upon him to have
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the allegations made in the first writ petition, verified
and to place the factual position before the Court. Pursuant
thereto, on August 7,1995, he had placed the record before
the Court which are confidential in nature. After their
perusal and hearings the petitioner, the Court did not think
it necessary to issue the directions as sought for. At this
stage, we would point out that when Sri P.V. Narasimha Rao,
as president of Indian National Congress or as the former
prime Minister, was alleged to have used the defence
aircrafts, this Court obviously was of the view that the
relationship between the two wings of the Government or the
political party, i.e., the Indian national Congress is of
debtor and creditor and that, therefore, prerogative writ
under Article 32 of the Constitution would not lie to
enforce contractual dues adjustable as per their practice.
The exercise of the power under Article 32 was, therefore,
obviously thought to be uncalled for. Supreme Court being
the highest Judicial forum, the need to record reasons is
obviated since there is no further appeal against the order
of this Court. Recording reasons is not, therefore,
necessary nor is called for.
The learned solicitor General, therefore, contended
that when the Court dismissed the writ petition, the
petitioner, being a professor of English in Chandigarh
University, should have exercised restraint and felt duty-
bound not to proceed further in the matter. Instead, he
filed the second writ petition with allegations which are
ex-facie contumacious. The petitioner reiterated the same in
his preliminary submissions to the notice of the contempt.
His modified statement filed on April 24,1996 itself is not
relevant. What would be material and relevant for
consideration is whether the allegations made against the
learned Chief Justice of India in the Second Writ petition
do constitute contempt of the Court. The modified stand,
therefore, is not relevant to adjudge whether the petitioner
has committed contempt of this Court. The Court, therefore,
has to consider the totality of the averments and their
effect on the judicial process to adjudge the conduct of the
petitioner to be contumacious. The petitioner contended that
he did not seek any personal gain for himself. As a duty-
bound citizen, he was actuated to see that the public dues
are recovered from any person how-so-high he may be. To the
best of his understanding, the petitioner made the averments
for public good and he has no intention to scandalise the
Court. He had approached this Court earlier more than 12
times to vindicate public justice. As a human being, he is
fallible but he has no intention to denigrate the Court to
which he has highest respect. His modified language in the
statement filed on April 24,1996 does indicate his
intention.
In the proceedings of the Court dated July, 17,1995, it
was recorded that the Solicitor General had appeared for
Sri P.V. Narasimha Rao who was impleaded in his personal
capacity. It is the petitioner’s contention that the
solicitor General cannot appear for him. He was not
assisting the Court as amicus. When the Chief justice called
for the records from the Government through solicitor
General, it is Court’s duty to give him copies of those
documents but the same were denied to him. It is his
xiv) Page 9 prayer
(a) Declare the respondent unfit to
hold office as chief Justice of
India;
(b) Strip the respondent of his
citizenship;
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(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 petition 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 would". It was submitted thereafter that the
contempt of Courts Act was a legacy of British imperialism
and, while appropriate to a "banana republic", was
imcompatible 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),
(xi),(xii),(xiii) and wishes to
withdrew 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
originally filed constitute
contempt of the statements would
not be of material reliance time to
submit the show cause in the
modified Court, at his request eh
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."
extract the relevant portions supplied to him by show
cause and his reply thereto and of preliminary submissions
and his modified statement as a substitution to the
averments made in the second writ petition and the effect
thereof. In respect of the averments made in the offending
portions of item 1,3, 5,9,13 and 14(a) and (d), the
petitioner stood by them. He submitted his modified
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statement on April 24,1996 only for the rest of the
statements. Let us first consider the unmodified averments
before examining the original and the modified averments.
The first averment made at page 4 in paragraph 9 is
that "it was improper for justice Ahmadi to hear it". Item 3
at page 6 in paragraph 14 is: "To this Justice Ahmadi
responded that he (the solicitor General) was there to
assist the Court, contrary to the evidence of the court
proceedings". Item 5 relating to the averments made in page
6 in paragraph 17 is; "the subsequent 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 ad is the foundation of justice
and fair play". Item 9 relating to the averments made at
page 8 in paragraph 18(f) is: "what are the legal
consequences of the violation of the sacred oath of office
by justice Ahmadi?" Item 14(a) relating to the prayer
portion is: "declare the respondent (justice A.M. Ahmadi)
unfit to hold office as Chief Justice of India" and item
14(d) is: "Direct the respondent’s (Justice A.M. Ahmadi’s)
prosecution under the prevention of Corruption Act." The
petitioner in his affidavit filed in support of the second
writ petition has stated in para 2 thereof thus: "I am
actuated purely by national interests and no personal gains
and have truthfully and carefully stated the facts (emphasis
supplied), in pursuance of my fundamental duties, which can
be effectively performed only through the fundamental rights
enjoyed as a citizen of India." In his preliminary
submissions, he has stated that the writ petition under
Article 32 shall be heard by a Division Court of not less
than 5 Judges. Emphasis was added by the petitioner himself.
Since the writ petition was not listed before a Court
components to dispose of the same, it made the order of
dismissal non est and it should be deemed to be pending and
is "not yet decided and disposed of constitutionally". No
contempt proceedings can, therefore, be initiated. The
notice is , therefore, pre-mature. Constitution of the Bench
by the chief Justice is in violation of the principles of
natural justice as no one can be a judge of his own cause.
Justice "should not only be done but should manifestly and
undoubtedly seem to be done. nothing is to be done which
creates even a suspicion that there has been an improper
interference of the course of justice.", he quoted the above
statement of Lord Heward, C.J. Regarding Item 1 referred to
hereinbefore; he justified the imputation stating that no
person can be a Judge in his own cause directly or
indirectly. In spite of his objection, the respondent (CJI)
chose to constitute the bench himself as a presiding judge.
According to the petitioner the word " improper", therefore
was used in that perspective, with regard to the averments
made in Item 3, his reply was that the Court proceedings
dated July 17,1995 recording that the solicitor General,
Shri Dipankar Gupta appeared in his official capacity to Sri
P.V. Narasimha Rao, a private party. He had stated that even
assuming, though not conceding, that he (Solicitor General
was acting as amicus curiae also was not recorded in the
Court proceedings. Therefore, his comment that CJI had
Fabricated false record is fair and an accurate report of
the court proceedings protected under section 4 of the Act.
With regard to Item 5, he states thus: " This is a
reaffirmation of an unimpeachable legal proposition in the
most widely-prevalent legal phraseology, to which no umbrage
can be taken, for by this logic all petitions containing
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this phrase would be deemed contemptuous. Even the part of
the quotation is from a leading decision of this Hon’ble
Court in Maneka Gandhi’s case."
With regard to averments made in item 9, he justified
it stating that "this again is an unresolved question of
great legal significance and he cited as analogy of Mr.
Fazlul Huq, then Chief Minister of Bengal and quoted a
passage from a special Bench decision of the Calcutta High
Court in R.C. Pollard v. Satya Gopal Majumdar [A.I.R. 1943
Cal. 594 (605)]. He added special emphasis to the words "the
clear violation of it brands a man as unfit for public
office" and stated that it is a legal question of
substantial importance relating to the violation of oath of
office, contained in the Third Scheduled of the Constitution
and it cannot be disposed of by a three judge Bench. It
cannot be considered as personal imputation against the
judge. With regard to imputation and prayer (a) in item 14,
he says that the analogy he had taken from the Calcutta High
Court decision. It was natural corollary to the legal
proposition considered by a constitution Bench. with regard
to prayer (d) in Item 14, he states that this is only a
prayer for relief sought. The defence taken in relation to
(xiv)(b) and (c) would equally be applicable and so he has
reaffirmed them to be correct. The allegations, therefore,
are neither "reckless" nor do they "disclose
irresponsibility" (put within inverted comma by the
petitioner himself) and is not "an abuse of the process of
the Court."
He reiterated that "several averments in the writ
petition" being truthful, factual, and made without rancour
or malice and for no personal, gain, should not be construed
"scandalous" (inverted commas were put by the petitioner
himself).
Let us now consider other imputations, in the language
of petitioner himself with regard to the "truthfully and
carefully" stated facts. At page 5 in para 10, the
petitioner has stated that "Justice Ahmadi’s utmost
reluctance to perform his fundamental duties and
constitutional obligations was apparent. when after failing
to browbeat the petitioner, he stated that it would be taken
up at the end of the cause list." in his preliminary
submissions he has stated that "this is a fair and accurate
submission of the Court proceedings on matter which had
already been "heard and finally decided"."(inverted commas
were put by the petitioner himself). He sought protection to
it, as a fair comment, under Section 4 of the Act. He
further justified it stating that even the use of the would
"browbeat" by the petitioner is a "fair criticism of
judicial act" (inverted comma was put by the petitioner
himself) to imply that proper hearing was not being granted
to the petitioner who had approached the highest Court of
the land to ’Protect and safeguard public property". he
justified them as a "statement of truthful facts", for
public good should not be construed as disrespect to the
Hon’ble Court. After offering justification in his modified
statement, he reiterates thus: "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." It would, thus, indicate that
the petitioner imputed motives to Justice A.M. Ahmadi, chief
justice India, in the discharge of his constitutional duty
and that by not admitting the writ petition or dismissing
the petition, the CJI was reluctant to perform his
constitutional duty. He knew that the word "browbeat" is a
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strident imputation to the Court and, therefore, in his
modified reluctance". Even in the modified statement, he
attributed motives to CJI in the performance of his
constitutional duty while the Bench that dismissed the
first writ petition consisted of three judges. By inference,
he suggested the other brother Judges to be mere non-entity.
With regard to item 4 at page 6 in para 15, he imputed
to the CJI that "and without recording the reasons for
dismissing the petition. So much for the vaunted adherence
to the twin principles of transparency and accountability."
In his preliminary submissions, he has given justification
for his attributed motives to CJI stating that the Solicitor
General handed over some documents to the bench, without
supplying the copy thereof to the bench, without supplying
the copy thereof to the petitioner. When he had objected to
it in his own language, he avers that "justice Ahmadi asked
him to argue on the supposition that nothing had been given
to the bench. In view of this, reference has been made to
the "twin principles of transparency and accountability
which", according to the petitioner, "is a fair and accurate
report of court proceedings, which is also for the "public
good"." (inverted commas were put by the petitioner
himself). In the modified statement he stated thus: "That
justice Ahmadi ultimately dismissed the petition, observing
that the Government of India was capable to realise the dues
from Shri Rao (which it had no to 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". It would, thus be seen that as regards this
imputation, the petitioner gives justification that there
was omission to record reasons for dismissal of the writ
petition; he imputed to CJI that the CJI facilitated Sri
Narasimha Rao to avoid payment of public dues. The act of
the Court was not transparent. According to the petitioner,
it is a lapse on the part of the Court for which the Court
conduct, by implication, was not transparent and the Court
must be accountable.
Item 6 at page 7 in paragraph 18(c) reads thus: "For
causing fabrication of courts proceedings of 7th 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 so high, the law is above you"?" (inverted commas
were put by the petitioner himself). In his preliminary
submissions he stated that "Although somewhat unhappily
worded, it is one of the substantial questions of law, which
needed to be determined by a constitution Bench of the apex
court". According to him, above maxim is one to which this
court has repeatedly stated to have avowed allegiance. In
his modified version, he stated thus: "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 respondent, what responsibility would ensue
on the presiding judge, who dictated them?" It would,
therefore, in the language of the petitioner, be
"discernible" difference of the imputation as originally
made in the writ petition and reiterated in his preliminary
submissions and its impact was understood by the petitioner.
Therefore, he made the amended version imputing
responsibility to justice Ahmadi personally for the so
called inaccurate recording of the Court proceedings and
stated that the CJI should be prosecuted for the record said
to be falsely recorded by CJI after fabrication and it is a
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fraud and CJI is liable for prosecution for fraud etc.
Item 7 at page 6 in paragraph 18(d) reads thus; "can
justice Ahmadi be allowed to take shelter behind the cloak
of the judicial immunity, in the facts and circumstances of
the instance case, particularly when unlike the president of
India, who cannot be impleaded in Civil or criminal
proceedings "during his term of office," CJI enjoys no such
constitutional protection?" In his preliminary submissions,
he stated that this is yet another constitutional conundrum
which needed to be resolved by a constitution Bench of the
Hon’ble Court under Article 145(3) read with Supreme Court
Rules. According to the petitioner "Crucial to it are "the
facts and circumstances" (inverted commas were put by the
petitioner himself) spelled out earlier". implicitly
conferring immunity on the congress president, Sri P.V.
Narasimha Rao, from laws of the land do not apply. Is this
not a negation of all that the constitution holds sacred?"
In the modified version, he stated thus "when under the
Constitution Judges of superior courts do not, unlade 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?" (Emphasis supplied). He, thus,
imputed to the chief justice of India, Justice Ahmadi
motives that CJI allowed Sri Narasimha Rao, Congress
president, to avoid payment of dues causing loss to the
national exchequer treating him as a class by himself and
the CJI neglected to perform the constitutional duty which
he holds sacred which is a wrong-doing. therefore, chief
Justice of India should not be allowed to take judicial
immunity and is liable to criminal prosecution even during
his term of office as CJI.
Item 8 of the imputation at page 7 in para 18(e) reads
thus; "for willfully and advertently violating (emphasis
supplied) 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 forfeited any legal
protection, even if it were available to him?" In his
preliminary submissions, he has stated that "The first part
of the sentence is based on the implicit constitutional
provisions and in fact shows that the petitioner/defendant
looks upon the apex court as the guardian of his fundamental
rights and those of the voiceless millions. The second part
raises a constitutional question, which needed determination
by an appropriate bench." In the amended version, he
reiterated that "for violating the fundamental rights of not
only the petitioner, as an individual, but also that of the
people of India, who are the ultimate sovereign, as stated
in the preamble to the Constitution, has not justice Ahmadi
sent wrong signals tot he entire judiciary of which he is
the head". In this paragraph, it is clear that the
petitioner knew the distinction between the imputation as
originally attributed to the Chief justice of India as Head
of the Institution, i.e., Judiciary and reiterated in his
preliminary submissions that CJI "willfully" and
"advertently" violated the petitioner’s and people’s
fundamental right to redressal by wrongful dismissal of the
writ petition. He knew its indelible effect on the public
confidence in the efficacy of judicial dispensation and
propriety of the judicial process. When they read the
imputation, he attributed to the Chief Justice that CJI
willfully and advertently violated the fundamental rights of
the petitioner and other people in dismissing the writ
petition. Thereby, justice Ahmadi forfeited legal protection
of law, if it were available to him and he stated in his
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modified version that the action of Chief Justice of India
sent wrong signals to the entire judiciary of which he is
the head. In other words, it would imply that CJI as judge
and as head of the institution committed misconduct.
Imputation 10 made at page 8 in paragraph 18(g) reads
thus: "For deliberate and willful failure to perform his
fundamental duties and stultifying their performance by the
petitioner, should not justice Ahmadi be stripped of his
citizenship, because duties alone can confer the
corresponding legal and constitutional rights?. In his
preliminary submissions, he has stated that this is also a
constitutional question needed to be interpreted on the
ambit and enforceability of fundamental duties in Article
51-A; it should not be considered by a Division bench.
"Moreover, this is a logical corollary of the foregoing
question of law. It is respectfully reiterated that a
question of law is not a personal imputation or
insinuation." In his modified version, he has stated thus:
"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 duties alone can confer the corresponding legal and
constitutional rights?" In this behalf, it is clear that the
petitioner is well conversant with the effect of "a personal
imputation and the negation". He attributed that Justice
Ahmadi, Chief Justice of India deliberately and willfully
failed to perform his fundamental duties by dismissing the
first writ petition and stultified the performance of the
duty by the petition and stultified the performance of the
duty by the petitioner. Thereby Justice Ahmadi "be stripped
of his citizenship". He also knew that for exercise of legal
or constitutional rights one owes corresponding duties. The
person who fails to perform the duty is accountable to the
people. CJI willfully, in other words, deliberately with
supine indifference dismissed the writ petition. CJI does
not get legal protection but also forfeits his citizenship.
Imputation 11 at page 8 in paragraph 18(h) reads thus:
"For allowing his son who is a practising in the Supreme
Court, to stay with him in his official residence, and
presumably 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?" In his preliminary submissions, he
reiterated that this is a question law based on information
he had received from "public documents"(inverted commas were
put by the petitioner himself) from an Article which was
said to have appeared in "India Today", with Justice
Ahmadi’s photograph and yet another one said to have been
published in "The Times of India", authored by a woman
senior Advocate of this Court. He states that "It is widely
talked in legal circles that apart from being favoured in
appointment on local commissions (by the Delhi High Court)
Justice Ahmadi’s son (and daughter also) are very often
assigned government briefs". In support of his imputation,
he seeks justification from the observation made by this
Court in C. Ravichandran Iyer V. Justice A.M. Bhattacjarkee
& Ors. [(1995) 5 SCC 457] of transparency of the conduct of
the Judge on and off the bench. He further added that "the
criminal contempt application of one M.P. Shorewala against
the petitioner/defendant was got filed and in gross
violation of statutory provision (mentioned in the office
report) was got listed next to the petitioner’s civil writ
petition on the same day. i.e., 30th January, 1996, for
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reasons which need no dilation’. The petitioner had not
modified in his modified version, though he undertook to do
so. He stood by the above imputation and reiteration with
further justification in that behalf made in his preliminary
submissions. we may observe here itself that personal
imputation against the chief Justice of India, Justice
Ahmadi of allowing his son to practise in the supreme court
is false. His permitting his son to reside in his official
residence said to be in abuse of his official position has
no relevance to the first writ petition relating to the
recovery of the alleged arrears said to be due from Sri P.V.
Narasimha Rao. During the course of hearing, when it was
pointed out to the petitioner that as a fact the son of
justice Ahmadi is not practising in the Supreme Court and
that the above imputation has no rational connection to the
first writ petition and of the necessity to allege them in
the second one, no answer was given by the petition and of
the necessity to allege them in the second one, no answer
was given by the petitioner. He sought to justify it on the
basis of the reports said to have been published in the
newspapers. When we further inquired from him whether he
made any independent inquiry in the matter or on the
accuracy of the newspaper publications, he stated that he
relied upon the above statements as an accurate statement of
fact reported therein. We may mention that this imputation
has no relevance to the first proceedings. As a fact, the
son of Justice Ahmadi is not practising in the Supreme
Court. The alleged facility of permitting his son to stay in
his official residence bears no relevance to the
proceedings. The imputations were obviously off the cup.
Imputation 12 made at page 8 in paragraph 18(i) reads
thus: " Is Justice Ahmadi not liable to pay from his pocket
not only the legitimate costs incurred by the petitioners 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?" In his
preliminary submissions he reiterated it giving further
justification thus: "This is the law laid down by this
Hon’ble Court in relation to public servants. Whether it is
also applicable to holders of constitutional office or not
is a substantial question of law, which should have been
answered by a constitution bench." In his modified version
he has stated thus: "who would be liable to reimburse the
legitimate costs incurred by the petitioner by filing C.W.P.
No.432 of 1995, and the present petition and the huge loss
caused to the public exchequer because of the persistent
default in paying them by P.V. Narasimha Rao, with 18%
interest?" it would, thus, be apparent that for dismissal of
the writ petition filed by a party, by a judicial act, the
presiding judge of the Court is liable to pay costs to the
litigant and also the resultant loss to the public exchequer
for non-payment of the dues by the defaulter with interest.
He justified it stating that when a public servant causes
loss to the State and the same is sought to be recovered
from him, why not the constitutional functionary for
judicial act is also liable to pay over the same. In other
words, if the Court dismisses a petition filed by a
litigant, the resultant costs must be born by the presiding
officer of the Court. Equally, the loss caused to the State
should also be recoverable from the presiding judge from his
personal pocket .
Regarding imputation 13, though he stated that he
wished to make modification to it, in his amended version,
he did not touch upon the same.
Imputation 13 at page 8 reads thus: "since no person
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can be a judge in his own cause, the senior-most judge of
the Hon’ble Court may be permitted to constitute a
constitution bench, for expeditious hearing of the petition
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." In his preliminary submissions, he
reiterates that " The prayer is in strict conformity with
the maxim cited earlier in the words of lord Heward, C.J."
He justified it on the basis of Justice P.N. Bhagwati (as he
then was), the senior-most judge’s presiding over P.S.
Gupta’s case, i.e., First judges case when justice
Chandrachud was imputed with some allegations. He also
justified his quoting the advice given to Justice V.
Ramaswami to proceed on leave when enquiry was pending
against him under the Judges [Inquiry] Act. It would be seen
that in this imputation, he categorically asserts and relies
that justice Ahmadi, Chief justice of India would bring
about influence directly or indirectly upon his colleagues
when the matter was to be heard. While he is in the office,
he also should not function as Chief Justice pending his
second writ petition. CJI also should not constitute any
benches. That should be done by the senior-most puisne
Judge. Any Judge appointed to this Court during his tenure
as CJI should not hear ht e case as CJI directly or
indirectly would influence them when the case relating to
his was dealt with. In other words, his imputation is that
Judges appointed to the Supreme Court during the tenure of
Justice A.M. Ahmadi as CJI amenable to influence in deciding
the cases at the behest of the CJI as they owe their
appointments to him. In other words, as soon as a writ
petition under Article 32 or petition under Article 136 was
filed attributing motives or bias to the CJI [it would
equally apply to any Judge he should desist to perform
judicial and administrative work. He should proceed on leave
till that case is decided. The senior-most puisne Judge
should assume the work of the CJI.
Imputations in Prayer (b) and (c) read as under:
"(b) strip the respondent (Justice
A.M. Ahmadi) of his citizenship";
and (c) Direct the registration of
an FIR against he respondent
(Justice A.M. Ahmadi) under the
Indian Penal Code for committing
forgery and fraud."
In his preliminary submissions, he has stated with
regard to stripping of citizenship of CJI that "this may
have been the consequence of the constitution bench
affirming the view taken by the Calcutta High Court cited
earlier. Moreover, this is only a prayer for relief sought,
which does not fall within the mischief of the Contempt of
Courts Act." With regard to prayer (c) he states thus: "the
plea taken in relation to (xiv (b). Now, in the modified
statement, he seeks to withdraw them and states "May kindly
be treated as deleted". It would, thus, be clear that his
asking for stripping of the citizenship of the Chief Justice
of India is for dismissing his writ petition and prosecution
is the consequence of a decision of this Court which had
affirmed the judgment of the Calcutta High Court in Fazalul
Haq’s, Chief Minister, Bengal’s case.
At this stage, it may be relevant to mention that the
petitioner, either in his preliminary submissions or
modified version filed on April 24, 1996, during the course
of hearing, did not tender any unconditional apology for the
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imputations made against CJI. On the other hand, it is clear
that being a professor of English. he knew the consequences
of the language used, its purpose and effect and pressed for
consideration. At the time of dismissing the second writ
petition to a pointed reference of the allegations to be
scandalous, it was recorded in the order and there was no
demur from the petition to the contra, that the petitioner
stood by them. In other words, he would bear the
consequences that would flow therefrom. According to the
petitioner, many an imputation bearing constitutional
contour require interpretation by a bench of five Judges
under Article 145(3). We need not refer the case to the
constitution Bench merely because the petitioner has raised
that contention in the petition; nor the same requires
decision unless the Court finds that the petition cannot be
disposed of without the questions being decided by the
constitution Bench.
When imputations were made against the Chief Justice,
the petitioner assumed, in our view, "wrongly" that CJI
cannot constitute benches nor he should discharge the
functions of Chief Justice until the matter is decided. On
appointment by the president by a warrant and on his taking
oath of office, the CJI becomes entitled to discharge the
functions and duties of that office including constitution
of benches and assignment of judicial work to judges as per
procedure. This responsibility flows from the office and
none including a litigant has right to demand for contra
position. As regards his personal disposition to hear a case
by a bench of which he is a member, it is his own personal
volition. The Chief Justice’s prerogative to constitute
benches and assignment of judicial business would no hinge
at the whim of a litigant.
The decisions of different benches are the decisions of
the Court. For the convenient transaction of business, the
senior judge among the members composing the Bench gets the
privilege to preside over the Bench but the decision is that
of the Court. The members composing the Bench collectively
speak for the Court and would bear collective responsibility
for the decision unless separate opinions are expressed by
individual members composing the Bench. Majority opinion is
the law as envisage under Article 145(5) of the
constitution. Their opinion or order thus is the opinion or
order of the Court. The minority opinion also would form
part of the judgment or order but remains the minority view.
The Chief justice is first among the colleagues.
The question, therefore, arises: whether the afore-
enumerated imputations constitute contempt of this court?
Though the petitioner contended that the provisions of the
Act are ultra vires Article 19 [1] (a) of the constitution,
it is not necessary for the purpose of this case to twelve
upon that contention. This court has taken suo motu
cognizance of contempt of this Court under Article 129 of
the Constitution of India which reiterates as a court of
record, its power to punish for contempt of itself. As
pointed out in the proceedings of this Court dated January
13, 1996, in spite of the fact that this Court brought to
his attention the gravity of the imputations, the petitioner
insisted and reiterated that he stood by the scandalous
averments made therein. This Court being duty bound, was,
therefore, constrained to issue notice of contempt. The
question, therefore, is: whether the aforesaid imputations
are scurrilous attack intended to scandalise the Court and
do they not impede due administration of Justice? Words are
the skin of the language. Language in which the words are
couched is media to convey the thoughts of the author. Its
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effect would be discernible from the language couched
proprio vigore. The petitioner, a professor of English
language in clear and unequivocal language emphasised and
reaffirmed that the averments were "truthfully and
carefully" worded. The question is: to what extent the
petitioner is entitled to the freedom of those expressions
guaranteed under Article 19[1](a) of the Constitution? If
they are found scandalous, whether he would get absolved by
operation of Article 19[1] (a) ?. As this Court has taken
suo motu action under article 129 of the Constitution and
the word ‘contempt’ has not been defined by making rules, it
would be enought to been defined by making rules, it would
be enought to fall back upon the definition of ’criminal
contempt" defined under section 2(c) of the act which reads
thus:
"Criminal Contempt" means the
publication (whether by words,
spoken or written, or by signs, or
buy visible representations, or
otherwise of any other act
whatsoever which--
(i) Scandalises or tends to
scandalise, or lowers or tends to
lower the authority of any court:
or
(ii) Prejudices, or interferes or
tends to interfere with, the due
course of any judicial proceedings;
or
(iii) interferes or tends to
interfere with, or obstructs or
tends to obstruct, the
administration of justice in any
other manner."
(emphasis supplied)
It is doubtless that freedom of speech and of
expression guaranteed by Article 19[1] (a) is one of the
most precious liberties in our secular, socialist republic.
Freedom of expression is a prized privilege to speak one’s
open mind although not always in perfect good taste of all
institutions. Since it opens up channels of open discussion,
the opportunity of speech and expression should be afforded
for vigorous advocacy, no less than abstract discussion.
This liberty may be regarded as an autonomous and
fundamental good and its value gets support from the need to
develop our evolving society from unequal pas t to a
vigorous homogeneous egalitarian order in which each gets
equality of status and of opportunity; social, economic and
political justice with dignity of person so as to build an
integrated and united Bharat. Transformation for that strong
social restructure would be secured when channels for free
discussion are wide opinion and secular mores are not
frozen. All truths are relative and they can be judged only
in the competition of market. Liberty is not to be equated
with certainty. Freedom of expression equally generates and
disseminates ideas and opinions, information of political
and social importance in a free market place for peaceful
social transformation under rule of law. The doctrine of
discovery of truth does require free exchange of ideas and
use of appropriate language. words are the skin of the
language which manifests the intention of its maker or the
speaker. The right to free speech is, therefore, an integral
aspect of right to self-development and fulfillment of
person’s duties some of which are proselytised in part IVA
of the Constitution as Fundamental Duties. The end of the
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State is to secure to the citizens freedom to develop his
faculties, freedom to think as he will, to speak as he
thinks and read as indispensable tools to the discovery of
truth and realisation of human knowledge and human rights.
Public discussion is political liberty. The purpose of
freedom of speech is to understand political issues so as to
protect the citizens and to enable them to participate
effectively in the working of the democracy in a
representative form of Government. Freedom of expression
would play crucial role in the formation of public opinion
on social, political and economic questions. Therefore,
political speeches are given greater degree of protection
and special and higher status than other types of speeches
and expressions. The importance of speaker’s potential
development on political and social questions is also
relevant to encourage human development for effective
functioning of democratic institutions.
Equally, debate on public issues would be uninhibited,
robust and wide open. It may well include vehement,
sarcastic and sometimes unpleasant sharp criticism of
Government and public officials. Absence of restraint in
this area encourages a well informed and politically
sophisticated electoral debate to conform the Government in
tune with the constitutional mandates to return a political
party to power. Prohibition of freedom of speech and
expression on public issues prevents and stifles the debate
on social, political and economic questions which in long
term endangers the stability of the community and maximises
the source and breeds for more likely revolution.
If maintenance of democracy is the foundation for free
speech, society equally is entitled to regulate freedom of
speech or expression by democratic action. The reason is
obvious, viz., that society accepts free speech and
expression and also puts limits on the right of the
majority. Interest of the people involved in the acts of
expressions should be looked at not only from the
perspective of the speaker but also the place at which he
speaks, the scenario, the audience, the reaction of the
publication, the purpose of the speech and the place and the
forum in which the citizen exercises his freedom of speech
and expression. The state has legitimate interest,
therefore, to regulate the freedom of speech and expression.
The state has legitimate interest, therefore, to regulate
the freedom of speech and expression which liberty
represents the limits of the duty of restraint on speech or
expression not to utter defamatory or libelous speech or
expression. There is a co-relative duty not to interfere
with the liberty of others. each is entitled to dignity of
person and of reputation. No body has a right to denigrate
other’s right to person or reputation. Therefore, freedom of
speech and expression is tolerated so long as it is not
malicious or libelous so that all attempts to foster and
ensue orderly and peaceful public discussion or public good
should result from free speech in the market place. If such
speech or expression was untrue and so reckless as to its
truth, the speaker or the author does not get protection of
the constitutional right.
Freedom of speech and expression, therefore, would be
subject to Articles 19 [2],129 and 215 of the Constitution,
in relation to contempt of court, defamation or incitement
to an offence etc. Article 3 read with Article 19 of the
Universal Declaration of Human Rights grants to everyone
liberty and right to freedom of opinion and expression.
Article 19 of the International Covenant on Civil and
political Rights, 1966 to which India is a signatory and had
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ratified, provides that everyone shall have the right to
freedom of expression, to receive and impart information and
ideas of all kinds but clause [3] thereof imposes
corresponding duty on the exercise of the right and
responsibilities. It may therefore, be subject to certain
restrictions but these shall only be such as are provided by
law and are necessary for the respect of life and
reputations of others for the protection of national
security or public order or of public health or moral. it
would thus be seen that liberty of speech and expression
guaranteed by Article 19[1] (a) brings within its ambit, the
corresponding duty and responsibility and puts limitations
on the exercise of that liberty.
A citizen is entitled to bring to the notice of the
public at large the infirmities from which any institution
including judiciary suffers from. Indeed , the right to
offer healthy and constructive criticism which is fair in
spirit must be left unimpaired in the interest of the
institution itself. Critics are instruments of reform but
not those actuated by malice but those who are inspired by
public weal. Bona fide criticism of any system or
institution including judiciary is aimed at inducing the
administration of the system or institution to look inward
and improve its public image. Courts, the instrumentalities
of the state are subject to the Constitution and the laws
and are not above criticism. Healthy and constructive
criticism are tools to augment its forensic tools for
improving its functions. A harmonious blend and balanced
existence of free speech and fearless justice counsel that
law ought to be astute to criticism. Healthy and
constructive criticism are tools to augment its forensic
tools for improving its functions. A harmonious blend and
balanced existence of free speech and fearless justice
counsel that law ought to be astute to criticism.
Constructive public criticism even if it slightly oversteps
its limits thus has fruitful play in preserving democratic
health of public institutions. Section 5 of the Act accords
protection to such fair criticism and saves from contempt of
court. The best way to sustain the dignity and respect for
the office of judge is to deserve respect from the public at
large by fearlessness and objectivity of the approach to the
issues arising for decision, quality of the judgment,
restraint, dignity and decorum a judge observes in judicial
conduct off and on the bench and rectitude.
In P.N. Duda vs. P. Shiv Shankar [AIR 1988 SC 1208]
this court had held that 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 the conscience and oath to
their office, i.e., to defend and uphold the Constitution
and the laws without fear and favour. Thus the judges must
do, in the light given to them to determine, what is right.
Any criticism about judicial system or the judges which
hampers the administration of justice or which erodes the
faith in the objective approach of the judges and brings
administration of justice to ridicule must be prevented. The
contempt of court proceedings arise out of that attempt.
Judgments can be criticised. Motives to the judges need not
be attributed. It brings the administration of justice into
disrepute. Faith in the administration of justice is one of
the pillars on which democratic institution functions and
sustains. In the free market place of ideas criticism about
the judicial system or judges should be welcome so long as
such criticism about the judicial system or judges should
be welcome so long as such criticism does not impair or
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hamper the administration of justice. This is how the courts
should exercise the powers vested in them and judges to
punish a person for an alleged contempt by taking notice of
the contempt suo motu or at the behest of the litigant or a
lawyer. In that case the speech of the Law Minister in a
Seminar organised by the Bar Council and the offending
portions therein were held not contemptuous and punishable
under the Act. In a democracy judges and courts alike are,
therefore, subject to criticism and if reasonable argument
or criticism in respectful language and tempered with
moderation is offered against any judicial act as contrary
to law or public good no court would treat criticism as a
contempt of court.
Advocacy touches and asserts the primary value of
freedom of expression. It is a practical manifestation of
the principle of freedom of speech which holds so dear in a
democracy of ability to express freely. Freedom of
expression produces the benefit of the truth to emerge. It
aids the revelation of the mistakes or bias or at times even
corruption it assists stability by tempered articulation of
grievances and by promoting peaceful resolution of
conflicts. Freedom of expression in arguments encourages the
development of judicial dignity, forensic skills of advocacy
and enables protection of fraternity., equality and justice.
It plays its part in helping to secure the protection of
other fundamental human rights. Legal procedure illuminates
how free speech of expression constitutes one of the most
essential foundations of democratic society. Freedom of
expression, therefore, is one of the basic conditions for
the progress of advocacy and for the development of every
man including legal fraternity practising the profession of
law. Freedom of expression, therefore, is vital to the
maintenance of free society. It is essential to the rule of
law and liberty of the Citizens. The advocate or the party
appearing in person, therefore, is given liberty of
expression. As stated hereinbefore, they equally owe
countervailing duty to maintain dignity, decorum and order
in the court proceedings or judicial process. The liberty of
free expression is not to be confounded or confused with
licence to make unfounded allegations against any
institution, much less the judiciary.
In E.M.S. Namboodiripad v. T. Narayanan Nambiar [1971)
1 SCR 697] a Bench of three judges had held that the law of
contempt stems from the right of a held that the law of
contempt stems from the right of a court to punish, by
imprisonment or fine, persons guilty of words or acts which
obstruct or tend to obstruct the administration of justice.
This right is exercised in India by all courts when contempt
is committed in facie curiae by the superior courts on their
own behalf or on behalf or courts subordinate to them, even
if committed outside the Courts.
Scandalising the judges or courts tends to bring the
authority and administration o flaw into disrespect and
disregard and tantamounts to contempt. All acts which bring
the court into disrepute or disrespect or which offend its
dignity or its majesty or challenge its authority,
constitute contempt committed in respect of single judge or
single court or in certain circumstances committed in
respect of the whole of the judiciary or judicial system.
Therein the criticism by the chief Minister who described
judiciary as an instrument of oppression an d the judges as
guided and dominated by class hatred, class interest and
class prejudices etc. was held to be an attack upon judges
calculated to give rise to a sense of disrespect an distrust
of all judicial decisions. It was held that such criticism
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of authority of the law and law courts constituted contempt
court and the Chief Minister was found guilty thereof.
The contempt of court evolved in common law
jurisprudence was codified in the form of the Act. Section 2
[c] defines " criminal contempt" which has been extracted
earlier. In A.M. Bhattacjarkee’s case [supra] relied on by
the petitioner himself, a Bench of the two judges considered
the said definition and held that scandalising the court
would mean any act done or writing published which is
calculated to bring the court or judges into contempt or to
lower its authority or to interfere with the due course of
justice or the legal process of the court. In para 30, it
was stated that scandalising the court is a convenient way
of describing a publication which, although it does not
relate to any specific case either past or pending or any
specific judge, is a scurrilous attack on the judiciary as a
whole, which although it does not relate to any specific
case either past or pending or any specific judge, is a
calculated to undermine the authority of the courts and
public confidence in the administration of justice. Contempt
of court is to keep the blaze of glory around the judiciary
and to deter people from attempting to render justice
contemptible in the eyes of the public. A liable upon a
court is a reflection upon the sovereign people themselves.
The contemnor conveys to the people that the administration
of justice is weak or in corrupt hands. The fountain of
justice is tainted. Secondly, the judgments that stream out
of that foul fountain is impure and contaminated. In
Halsbury’s Laws of England [4th Edn.] Vol. 9 para 27 at page
21 on the topic "Scandalising the Court " it is stated that
scurrilous abuse of a judge or court, or attacks on t he
personal character of a judge, are punishable contempts. The
punishment is inflicted, not for the purpose of protecting
either the court as a whole or the individual judge of the
court from a repetition of the attack, but of protecting the
public, and especially those who either voluntarily or by
compulsion are subject subject to the jurisdiction of the
court, from the mischief they will incur if the authority of
the tribunal is undermined or impaired. In consequence, the
court has regarded with particular seriousness allegations
of partiality or bias on the part of a judge or a court. On
the other hand, criticism of a judge’s conduct or of the
conduct of a court, even if strongly worded, is not a
contempt provided that the criticism is fair, temperate and
made in good faith, and is not directed to the personal
character of a judge or to the impartiality of a judge or
court.
Therefore, it is of necessity to regulate the judicial
process free from fouling the fountain of justice to ward
off the people from undermining the confidence of the public
in the purity of fountain of justice and due administration.
Justice thereby remains pure, untainted and unimpeded. The
punishment for contempt, therefore, is not for the purpose
of protecting or vindicating either the dignity of the court
as a whole or an individual judge of the court from attack
on his personal reputation but it was intended to protect
the public who are subject to the jurisdiction of the court
and to prevent under interference with the administration of
justice. If the authority of the court remains undermined or
impeded the fountain of justice gets sullied creating
distrust and disbelief in the mind of the litigant public or
the right-thinking public at large for the benefit of the
people. Independence of the judiciary for due course of
administration of justice must be protected and remain
unimpaired. Scandalising the court, therefore, is a
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convenient expression of scurrilous attack on the majesty of
justice calculated to undermine its authority and public
confidence in the administration of justice. The malicious
or slanderous publication inculcates in the mind of the
people a general disaffection and dissatisfaction on the
judicial determination and indisposes in their mind to obey
them. If the people’s allegiance to the law is so
fundamentally shaken it is the most vital and most dangerous
obstruction of justice calling for urgent action. Action for
contempt is not for the protection of the judge as private
individual but because they are the channels by which
justice is administered to the people without fear or favor.
As per the Third Schedule to the Constitution oath or
affirmation is taken by the judge that he will duly and
faithfully perform the duties of the office to the best of
his ability, knowledge and judgment without fear or favour,
affection or ill-will and will so uphold the Constitution
and the laws In accordance therewith, judges must always
remain impartial and should be known by all people to be
impartial. Should they be imputed with improper motives,
bias, corruption or partiality, people will lose faith in
them. The judge requires a degree of detachment and
objectivity which cannot be obtained, if judges constantly
are required to look over their shoulders for fear of
harassment and abuse and irresponsible demands for
prosecution or resignation. The whole administration of
justice would suffer due to its rippling effect. It is for
this reason that scandalising the judges was considered by
the parliament to be contempt of a court punishable with
imprisonment or fine.
Scandalising the court, therefore, would mean hostile
criticism of judges as judges or judiciary. Any personal
attack upon a judge in connection with office he holds is
dealt with under law of libel or slender. Yet defamatory
publication concerning the judge as a judge brings the court
or judges into contempt, a serious impediment to justice and
an inroad on majesty of justice. Any caricature of a judge
calculated to lower the dignity of the court would destroy,
undermine or tend to undermine public confidence in the
administration of justice or majesty of justice. It would
therefore, be scandalising the judge as a judge, in other
words, imputing partiality, corruption, bias, improper
motives to a judge is scandalisation of the court and would
be contempt of the court. Even imputation of lack of
impartiality or fairness to a judge in the discharge of his
official duties amounts to contempt. The gravamen of the
offence is that of lowering his dignity or authority or an
affront to majesty of justice. When the contemnor challenges
the authority of the court, he interferes with the
performance of duties of judge’s office or judicial process
or administration of justice or generation or production of
tendency bringing the judge or judiciary into contempt.
Section 2 (c) of the Act, therefore, defines criminal
contempt the wider articulation that any publication,
whether by words, spoken or written, or by signs, or by
visible representations, or otherwise of any matter or the
doing of any other act whatsoever which scandalises or tends
to scandalise, or lowers or tends to lower the authority of
any court; or prejudices, or interferes or tends to
interfere with, the due course of any judicial proceeding;
or interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner, is a criminal
contempt. Therefore, a tendency to scandalise the Court or
tendency to lower the authority of the court or tendency to
interfere with or tendency to obstruct the administration of
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justice in any manner or tendency to challenge the authority
or majesty of justice, would be a criminal contempt. The
offending act apart, any tendency if it may lead to or tends
to lower the authority of the court is a criminal contempt.
Any conduct of the contemnor which has the tendency or
produces a tendency to bring the judge or court into
contempt or tends to lower the authority of the court would
also be contempt of the court.
It is true that in an indictable offence generally mens
rea is an essential ingredient and requires to be proved for
convicting the offender but for a criminal contempt as
defined in Section 2 (c] any enumerated or any other act
apart, to create disaffection disbelief in the efficacy of
judicial dispensation or tendency to obstruct administration
of justice or tendency to lower the authority or majesty of
law by any act of the parties, constitutes criminal
contempt. Thereby it excludes the proof of mens rea. What is
relevant is that the offending or affront act produces
interference with or tendency to interfere with the courses
of justice. At this stage, we would dispose of one of the
serious contentions repeatedly emphasised by the petitioner
that he had no personal gain to seek in the lies except said
to have been fired by public duty and has professed respect
for the Court. Those are neither relevant nor a defence for
the offence of contempt. What is material is the effect of
the offending act and not the act per se. In E.M.S.
Namboodiripad’s case this court had held in paragraph 33
that a law punishes not only acts which had in fact
interfered 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. It was held that the
likely effect of the words must be seen and they clearly
have effect of lowering the prestige of the judges and
courts in the eyes of people. Same view was reiterated in
Sambu Nath Jha vs. Kedar Prasad Sinha [(1992(1) SCC 573 at
577]. As stated earlier, imputation of corrupt or improper
motives in judicial conduct would impair the efficacy of
judicial dispensation and due protection of the liberties of
the citizen or due administration of justice. This paramount
public interest is protected by the definition in Section 2
[c] of the Act. It is, therefore, not necessary to establish
actual intention on the part of the contemnor to interfere
with the administration of justice. making reckless
allegations or vilification of the conduct of the court or
the judge would be contempt.
The question, therefore, to be considered is: whether
the imputations referred to hereinbefore have necessary
tendency to impinge or tendency to impede the public
confidence in the administration of justice or would create
disbelief in the efficacy of judicial administration or
lower the authority or interferes with majesty of Court? The
court, therefore, is required to consider whether the
imputations made by a contemnor are calculated to bring or
have the effect of bringing the court into contempt or
casting aspersions on the administration of justice tends to
impede justice etc. The court has to consider the nature of
the imputations, the occasion of making the imputations and
whether the contemnor foresees the possibility of his act
and whether he was reckless as to either the result or had
foresight like any other fact in issue to be inferred from
the facts and circumstances emerging in the case. The reason
is obviously that the court does not sit to try the conduct
of a judge to whom the imputations are made. It would not be
open to the contemnor to bring forward evidence or
circumstances to justify or to show whether and how fairly
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imputations were justified because the judge is not before
the Court. The defence justification to an imputation would
not, therefore, be available to the contemnor. The
imputation of improper motives or bias cannot be justified
on the principle of fair contempt.
In Ambard v. Attorney-General for Trinidad and Tobago
[1936 AC 322 at 335] Lord Atkin in his oft-quoted judgment
held that justice is not a cloistered virtue and must be
allowed to suffer the secutiny and respectfully, have been,
though outspoken comments of ordinary man". But in the same
judgment it was further pointed out that provided that
members of the public should 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. That was a case of criticism of
the Court proceedings as is saved by Section 5 of the Act.
Law is not in any doubt that in a free democracy
everybody is entitled to express his honest opinion about
the correctness or legality of a judgment or sentence or an
order of a court but he should not overstep the bounds.
Though he is entitled to express that criticism objectively
and with detachment in a language dignified and respectful
tone with moderation, the liberty of expression should not
be a licence to violently make personal attack on a judge.
Subject to that, an honest criticism of the administration
of justice is welcome since justice is not a cloistered
virtue and is entitled to respectful scrutiny. Any citizen
is entitled to express his honest opinion about the
correctness of the judgment, order or sentence with
dignified and moderate language pointing out the error or
defect or illegality in the judgment, order or sentence.
That is after the event as post-mortem.
In Shri Baradakanta Mishra etc. v. The Registrar of
Orissa High Court & Anr. etc. [1974) 1 SCC 374], the
appellant, a District judge was suspended and a spate of
litigation in that behalf had ensued. When an order of
suspension was set aside by the Government, in exercise of
his power under Article 235, the High Court further ordered
suspension of him pending enquiry of the allegations made
against judges in a memorandum and letters sent to the
Governor in a vilificatory criticism of the judges in their
function on the administration side. When contempt action
was initiated, he challenged the jurisdiction of the court
and the competency to initiate action for contempt on the
specious plea that the acts done by the High Court were on
the administration side and were not judicial actions. A
three-Judge Bench had negatived the plea and convicted the
appellant under section 12 of the Act. When the matter had
come up before this court, a constitution Bench considered
the gravamen of the imputations and had held that the
allegations made against the court in the memo submitted to
the Governor constituted scurrilous allegations against the
High Court. Again some of the allegations made in the memo
of appeal and various communications to the Supreme Court
were held to constitute contempt of the Court and the
conviction was confirmed though sentence was reduced. This
Court held that imputation of improper motives, bias and
prejudice constitutes contempt under Section 2[c] of the
Act.
In Special Reference No. 1 of 1964, popularly known as
U.P. Legislature’s Warrant of Arrest of the Judges of the
Allahabad High Court and Keshav Singh Reference, a Bench of
seven judges of this Court observed that the power to punish
for contempt alleged must always be exercised cautiously,
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wisely and with circumspection. The best way to sustain the
dignity and status of their [judges] office is to deserve
respect from the public at large by the quality of their
judgments, fearlessness and objectivity of their approach
and buy the restraint, dignity and decorum which they
observe in their judicial conduct. It would equally apply to
the legislature. Keeping the above perspective in view, the
question emerges; whether the imputations itemised
hereinbefore constitute contempt of the Court. At the cost
for petition, we any reiterate that in a democracy though
every one is entitled to express his honest opinion about
the correctness or legality of a judgment or an order or
sentence, judges do require degree of detachment and
objectivity in judicial dispensation, they being duty bound
with the oath of office taken by them in adjudicating the
disputes brought before the court. The objectivity or
detachment cannot be obtained if the judges have constantly
to look over their shoulders for fear of harassment and
abuse and irresponsible demands for prosecution, resignation
or to refrain from discharging their duties pending further
action. Cognisant to this tendency;, the founding fathers of
the Constitution engrafted Articles 121 and 211 of the
constitution and prohibited the parliament and the
legislatures to discuss on the floor of the House the
conduct of any judge of the Supreme Court or the High Court
in the discharge of his duties except upon a motion for
presenting address to the president praying for the removal
of a judge under Article 124[4] of the Constitution in
accordance with the procedure prescribed under the judges
[Inquiry] Act, 1968 and the Rules made thereunder. In A.M.
Bhattacharjee’s case on which great reliance was placed by
the petitioner emphasising the rectitude on the part of a
judge, this Court laid the rule for the advocates to adhere
to a code of conduct in seeking redressal on the perceived
aberration of the conduct of a judge otherwise than in
accordance with the procedure prescribed in Article 124 [4]
of the Constitution. The respect for and the dignity of the
court thereby was protected from scurrilous attack on the
judge or the court. if the forum of the judicial process is
allowed to mount scurrilous attack on a judge, the question
arises whether the forum of the judicial process of
vilification of the judges or imputations to the judges in
the pleadings presented to the court would give liberty of
freedom of expression to an advocate or a light of the above
discussion, we have little doubt to conclude that when an
advocate or a party appearing before the court requires to
conduct himself in a manner befitting to the dignity and
decorum of the court, he cannot have a free licence to
indulge in writing in the pleadings the scurrilous
accusations or scandalisation against the judge or the
court. If the reputation and dignity of the judge, who
decides the case are allowed to be prescribed in the
pleadings, the respect for the court would quickly disappear
and independence of the of the judiciary would be a thing of
the past.
In Re: Roshan Lal Ahuja [(1993) Supp. 4 SCC 446] when
the contemnor-petitioner’s countless unsuccessful attempts
against his order of removal from service became abortive
and in spite of this Court granting at one stage
compensation of a sum of Rs.30,000/- he had indulged in the
pleadings with scurrilous accusations on judges who granted
compensation and not reinstatement. It was held by a three-
judge Bench that the contemnor had permitted himself the
liberty of using language in the documents and pleadings
which not only had the effect of scandalising and lowering
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the authority of the court in relation to judicial matters
but also had the effect of substantial interference with an
obstructing the administration of justice. The unfounded and
unwarranted aspersions on the judges of this Court had the
tendency to undermine the authority of the court and would
create distrust in the public mind as to the capacity of the
judges of this Court to met out fearless justice.
Accordingly, he was convicted and sentenced to under go
imprisonment for a period of four months and to pay a fine
of Rs.1,000/- and in default, to undergo sentence for a
further period of 15 days.
In L.D. Jaikwal v. State of U.P. [1984) 3 SCC 405], the
conduct of an advocate in using abusive language in
pleadings and vilification of a judge was held to constitute
contempt under Section 2 [c] (i) of the Act and his sentence
under Section 12 of the Act was upheld. In Re: Shri S.
Mulgaokar [(1978) 3 SCC 497] the conduct of a senior
advocate in publishing a pamphlet imputing improper motives
to the Magistrate who decided his case was held to
constitute substantial interference with the due
administration of justice. His conviction was accordingly
upheld though sentence was reduced. In K.A. Mohammed Ali v.
C.N. Prasannan [(1994) Supp. 3 SCC 509] while arguing the
case, the counsel raised his voice unusually high to the
annoyance of the Magistrate and used derogatory language
against the Magistrate before whom he conducted the trial of
an accused. His conviction and sentence for contempt was
accordingly upheld.
In Gillers "Regulation of Lawyers - Problems of Law and
Ethics" [Third Edition - 1992] at page 747 it was pointed
out that in spite of first Amendment protection of free
speech, lawyers who committed contempt of the court were
punished by American court even if they were advocating
their clients interest at that time. The lawyer’s behavior
threatens the dignity and authority of the Courts was held
to constitute contempt of the court.
In Charan Lal Sahu v. Union of India & Anr. [(1988) 3
SCC 255], in a petition under Article 32 of the Constitution
the advocate indulged in mud-slinging against advocates and
this Court. It was held that those allegations were likely
to lower the prestige of this Court. This Court accordingly
held that he committed contempt in drawing up the petition
and directed to initiate proceedings against him for
overstepping the limits in particular of self-restraint.
It would, thus, be seen that when the first writ
petition was dismissed by this Court, as a responsible
citizen, the petitioner would have kept quite. When the
result animated by the petitioner was not achieved, he
embittered to foul at the process of this Court and
emboldened to file the second writ petition with imputation
made against this Court, in particular targeting the Chief
justice of India, Justice A.M. Ahmadi. As stated
hereinbefore and need not be reiterated once over that it is
the duty of the Court to hear and decide any matter posted
for admission. Therefore, there is nothing improper for the
first Court presided over by the Chief Justice of India to
hear and decide the matter. When it came up for admission,
the Court appears to have been persuaded to ascertain the
correctness of the allegations made in the writ petition.
This Court obviously before issuing notice had sent for and
directed the solicitor General to obtain the information
from the Government as to the correctness of the allegations
made before deciding whether the Court would exercise its
prerogative power under Article 32 to issue directions as
sought for. In furtherance thereof, the Solicitor General
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admittedly placed before the Court the record. On perusal
thereof, the first Court the record. On perusal thereof, the
first Court had declined to exercise the power as enumerated
and obviously stated by the petitioner that the exercise of
the power under Article 32 was not appropriate since the
Government in the Defence Department could recover from the
Prime Minister’s Secretariat or from the Congress Party, as
the case may be, all the arrears, if any, due and payable by
the respective entities. It is not obligatory for this court
to give reasons for dismissing the writ petition. Day in and
day out in countless cases, while refusing to interfere with
the orders this Court dismisses the petitions be it filed
under Article 32 or 136 of the Constitution in limine. It is
also seen that though the case was adjourned for two weeks,
no doubt, it was not posted on that day but it was listed
some time thereafter. In the proceedings of the Court
recorded by the staff, it was recorded that the Solicitor
General or in personal capacity obviously acted as amicus on
behalf of the court. Being the Solicitor General for India,
he was directed to have consultation with Government
Departments and to obtain needed information. In appropriate
cases this procedure is usually adopted by the Court.
Recording of the proceedings by the court generally is not
noted by the Court. Is it improper for the Chief justice to
hear the case? Was the dismissal totally unjust and unfair
for not recording the reasons? The petitioner obviously with
half-baked knowledge in law mixed up the language as
"improper for Chief justice of India to hear it". "Dismissal
of the "grouse" of the petitioner was totally unjust,
unfair, arbitrary and unlawful flagrant violation of mandate
of Article 14" "Violation of the sacred oath of office " and
to "declare justice A.M. Ahmadi unfit to hold the office as
Chief Justice of India". When these imputations were pointed
out to the petitioner by three-Judge Bench presided over by
brother Verma, J. while dismissing the second writ petition,
to be scandalous and reckless, he had stated that he "stood
by" those allegations. He reiterated the same with
justification in his preliminary submissions. He has stated
that the accusations made were truthful and "carefully"
worded. In this backdrop scenario, the effect of these
imputations is obviously reckless apart from scandalising
this Court, in particular the Chief Justice of India and was
intended to foul the process of the Court or lower or at any
rate tends to lower the authority of the Court in the
estimate of the public and tends to undermine the efficacy
of he judicial process. It would, therefore, be clear that
the accusations are gross contempt. At the height of it, he
stated that since the first writ petition was not disposed
of by a bench of not less than five judges, the writ
petition was not dismissed in the eye of law and the order
of dismissal is non est and it is "not decided and disposed
of constitutionally". This assertion of the petitioner flies
in the face of the judicial finality of the order of this
Court and the assertion tends to question the authority of
the court. It creates tendency to obstruct the
administration of justice and, therefore, it would be an
outrageous criminal contempt.
Omission to record reasons, according to the
petitioner, is violative of the principles of natural
justice. The Chief justice of India has committed
impropriety in deciding the matter. As stated earlier, the
decision is that of the Bench on behalf of the Court and the
Chief justice, being the senior-most among the members
constituting the bench, had spoken on behalf of the Bench.
Therefore, the attribution of improper motives scandalises
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the efficacy of judicial adjudication and per se
contumaciously lowers or at any rate tends to lower the
dignity or authority of the Court. The prayer for
prosecution of the Chief justice, though sought in Item 14
(a) and (d) to be withdrawn, which would be of no
consequence, is, therefore, unbelievably outrageous
contempt.
These findings dispose of Items 1,3,5,9 and 14(a) which
remain not even amended by the contemnor.
As regards other imputations, it may be stated at this
stage, as rightly pointed out by the learned solicitor
general, that what we are required to consider is the effect
of the imputations made by the contemnor in the second writ
petition and not what he sought to amend some of he
averments attributing imputations to this Court and the
effect thereof. By his own admission, they are "strindent"
and "pungent". They are "truthful" and were "carefully"
stated by him. Even the amended averments did not advance
the contemnor’s stand. On the other hand, they compound
perpetration of contumacious conduct recklessly made by the
contemnor in the second writ petition. It item 4, the
contemnor attributed 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 reasons
for dismissing the petition. So much for the vaunted
adherence to the twin principles of the "transparency and
accountability". It would be seen that insinuations that
emerge from these words in writ petitions together with the
phrase that CJI browbeated him ex facie scandalise the
Court and tend to lower the authority of the Court. As seen,
the insinuations tend to bring the court into contempt in
the estimate of the general public and that the court lacked
fairness, objectivity and dismissed the writ petition for
known reasons. it also tends to interfere with the
administration of justice and that the court should give
reasons last the order be believed to be shrouded with
suspicion. Therefore, it is ex facie contumacious. The
contemnor seeks to justify his averments under Section 4 of
the Act as fair and accurate report of the judicial
proceedings and that, therefore, they are not contempt. Even
in his modified statement, for his statement that the chief
justice of India browbeated him in dismissing the writ
petition, he stated the "discerned reluctance" on the part
of the presiding judge. In other words, his revised
imputation compounds the commission of flagrant contempt by
substituting the word "discerned reluctance" on the part of
the presiding judge. In other words, his revised imputation
compounds the commission of flagrant contempt by
substituting the word "browbeat" with the words "discerned
reluctance". In other words, he attributed motives to the
Court for dismissal of the first writ petition. It would,
thus, be clear that the contemnor animated to impute motives
to the chief Justice of India in the discharge of his
constitutional duty of deciding a case. When his grouse
stated by the petitioner emphasis supplied] against sri P.V.
Narasimha Rao was not redressed exercising the power under
Article 32 a result which he wanted, the petitioner
contumaciously attributed motives to the Court, in
particular to the presiding officer of the Court, the Chief
Justice of India and thereby he scandalised the court in the
estimate of the general public. We fail to appreciate the
stand of the petitioner that Section 4 bails him out and
purges from contempt. It would be applicable only to
publication of the report of a judicial proceedings fairly
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and with accuracy to outside the world. There is a
distinction between expression in pleading and publication
of he report of the judicial proceedings or an order without
malice as fair and constrictive criticism to the readers. As
stated earlier, fair criticism of the judicial proceedings
outside the pleadings of the Court is a democratic feature
so as to enable the court to look inward into the
correctness of the proceedings fn the legality of the orders
of the orders of the Court by the Court itself for
introspection. But a party has a duty and responsibility to
plead as a part of the averments or the prayer in the
relevant portion with language befitting with the dignity of
the Court and the judicial process and not in self-abuse of
the freedom of expression given under Article 19 [1] (a).
abuse of the process of the court is a self-evidence. As
such Article 19(2) creates an embargo on the freedom of the
expression and excludes from its operation the power of
contempt of Court under the Act. This Court being court of
record, power of this Court under Article 129 is independent
and is not subject to Article 19[1] (a), Ex abundanti
cautela, Article 19[2] excludes the operation of Articles 19
[1] when speech or expression is trapped in contempt of
court or tends to trench into it. When the contempt of court
is committed by a litigant, the freedom of expression being
contemptuous becomes punishable under Article 129 of eh
Constitution de horse the power under Section 12 of the Act.
Item 7 relates to the imputation that the Chief justice
of India gets no judicial protection unlike the president of
India for being prosecuted even while Chief justice A.M.
Ahmadi holds office as Chief justice of India and is
accordingly liable to prosecution. This bravado not only
impinges upon the protection given by Article 124[4] of the
Constitution and under relevant provisions of the protection
of officials Act ex facie it is an outrageous tendency to
lower the authority of the Court and interference with
judicial administration. The assertion of the petitioner
that this is a constitutional conundrum required to be
decided by a constitution Bench of this Court highlights
contumacious conduct of the contemnor.
In item 8 he attributes that this Court "willfully" and
"advertently" [emphasis supplied] violated fundamental
rights of the contemnor and of other people in not granting
relief of direction to Sri P.V. Narasimha Rao to pay the
alleged dues. The word "advertently" was carefully used by
the petitioner and the word "willfully" was employed for
refusal of the relief. They do emphasise the emphatic tone
of he language and the motive of he contemnor and attribute
motives to this court that the relief sought for in the
first writ petition "advertently" was not granted and was
"wilfully" declined and thereby the Chief Justice Ahmadi
lost constitutional protection of not being prosecuted. This
accusation is a culmination of the contumacious conduct of
wanton scandalisation of the Court and reckless denigration.
In his amended petition, her further aggravates the contempt
stating that the dismissal of the petition by the first
court sent wrong signals to the entire judiciary of which
justice Ahmadi is the head as chief justice of India. The
scurrilous attack, therefore, is not only on Justice Ahmadi
as a judge but also as the Chief Justice of India and also
as head of the institution of the whole country. Thereby he
designedly and deliberately allowed himself being brought
within ex facie criminal contempt.
Item 9 relates to the accusation "what are the legal
consequences of the violation of oath of office by justice
Ahmadi". He states in his preliminary submissions that it a
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constitutional question required to be decided by a
constitution Bench. As stated earlier, every question raised
need not necessarily be decided unless the case cannot be
disposed of without deciding the question for granting or
refusing to grant the relief. The oath of office taken by a
judge of this Court is not that he should allow every case
or dismiss every case but only to uphold the constitution
and the laws and to administer justice in accordance
therewith in tune with the oath of his office. The
protection of Articles 124 [4], 121,211, the judicial
officers protection act and the judges (protection) Act is
to ensure independence to the judiciary. Threat to judicial
process is a challenge to the authority of the court or
majesty of justice. It would be ex-facie contumacious
conduct.
In item 10 again, the petitioner attributes that
justice Ahmadi as Chief justice of India and as a judge of
this court deliberately and willfully failed to perform his
duties and stultified the performance of fundamental duties
by the petitioner. This imputation is the consequence of the
dismissal of he first writ petition. Thereby, he seeks
stripping of citizenship of justice Ahmadi. It is an
unbelievable outrageous affront to the majesty of justice on
the part of the contemnor and scandalisation of this Court.
It tends to lower the dignity and authority of the Court and
also sows seeds for persons with similar propensity to
undermine the authority of the Court or the judiciary as a
whole; he crossed all boundaries of recklessness and
indulged in wild accusations. He sought justification in his
preliminary submissions that it being a question of law, it
does not amount to personal imputation or insinuation. In
spite of this Court pointing it out to be scandalous, when
the second writ petition was dismissed and his persistence
that he stood by those allegations, it does not lie in his
mouth to contend either in his preliminary submissions or
his modified form that the dismissal of the first writ
petition amounts to failure to perform fundamental duties by
the CJI and, therefore, it would further compound the
contempt.
In imputation 11, the petitioner attributed to the
chief Justice of India that he had allowed his so to
practise in the supreme Court and to stay with him in his
official residence etc. The petitioner sought justification
to the said imputation from reports said to have been
published in the "India Today" and "The Times of India" by a
lady senior advocate of this Court. But he petitioner has
not placed on record the said material. Therefore, we do not
have the advantage to verify their contents or correctness
or otherwise of the statements said to have been published
therein. When we pointed out to the petitioner whether he
had made any independent enquiry, he had reiterated that he
relied upon those statements. In other words, by
implication, he admitted that he did not make any
independent enquiry into the alleged misuse of official
facility by the Chief Justice of India in permitting his son
to practise in this Court or to reside in his official
residence along with him. For the said imputation he said
that Justice Ahmadi, the Chief justice of India is liable to
be prosecuted under the prevention of Corruption Act and he
seeks as a justification the ratio decidendi of Veeraswami’s
case. it is seen that Veeraswami’s case has no application
whatsoever. As stated earlier, Article 124 (4) of he
constitution read with the Judges [Inquiry] Act prescribes
the procedure to take action against a judge of the Supreme
Court or of the High Court for proved misbehavior or
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incapacity. As laid down in Bhattacharjee’s case, Bar
Association of the concerned Court was given liberty to
place any material of the aberration of the conduct of a
judge before the CJI for redressal as per the "in-house"
procedure laid down therein. For proved misbehavior, the
address by each house of parliament to the president for
removal of a Judge pursuant to a finding of proved
misbehavior or incapacity under the judges (Inquiry) Act by
a resolution of not less than two-third of the members of
the House and voting by two-third of the House present and
an order of removal therein by the president of India is
culmination. In Bhattacharjee’s case, this Court also laid
down that no other authority or person has power to conduct
any enquiry against the conduct of a judge. Articles 121 and
211 prohibit discussion, in the parliament or in the
Legislature of a State, or the conduct of judge of the
Supreme Court or High Court respectively. Therefore, when
the constitution prohibits the discussion of the conduct of
a Judge, by implication, no one has power to accuse a judge
of his misbehavior or incapacity except and in accordance
with the procedure prescribed in the Constitution and the
Judges [Inquiry] act or as per the procedure laid down in
Bhattacharjee’s case. Irrelevancy of the accusations apart,
the prayer for prosecution of the Chief Justice of India
under the prevention of Corruption Act is an assault on
majesty of justice, affront to authority of law, the gravest
contumacious conduct and scurrilous scandalisation of the
Court.
Item 12 of the accusation relates to the payment of
litigation cost incurred by the contemnor in both The writ
petitions and the loss said to have been caused to the
public exchequer by non-payment by Sri P.V. Narasimha Rao,
from personal pocket of Justice Ahmadi as a Chief Justice
for dismissal of the Writ petition. He stated in his
preliminary submission that when loss was caused by a public
servant in his official capacity to the public exchequer due
to his dereliction of duty and under the law it was
recoverable from pay or pension of the public servant, on
the same analogy Chief justice of India should be liable to
make good the loss incurred by him and by the State due to
non-payment by Sri P.V. Narasimha Rao. The implication is
that by judicial act, if a presiding Judge dismisses a
petition, he is liable to bear personally not only the costs
incurred by the litigant but also the resultant loss to the
state with interest payable thereon. This imputation is a
deliberate interference with the judicial process and tends
to lower the authority of the Court spreading the virus to
repeat by drum beats of similar reckless imputations against
the judiciary at every forum down to the lower rank of the
judiciary spreading rippling effect on independence of the
judiciary, authority of the Court and wanton interference
with judicial process. It must be held to he a depraved
contumacious conduct.
Item 13 relates to the interference with the judicial
management of the Court and the duty of a Judge. When an
accusation is made against the presiding judge, by
implication, until the matter is decided, the presiding
officer has to desist from discharging the judicial duties
by his proceeding on leave and the senior-most puisne judge
would assume the office of the Chief Justice. This is a
deliberate interference in the judicial management tending
to son disaffecting in the efficacy of dispensation of
justice. The further accusation that the Chief Justice of
India should not constitute a Bench of the Judges appointed
during his tenure so that "he (CJI)" "may not directly or
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indirectly or indirectly influence any of the Judges hearing
the matter". It would, thus, be in unequivocal loud
expression that the contemnor attributed motives to the CJI
that the judges appointed during his tenure as Chief Justice
are amenable to his influence in judicial adjudication and
would decide the causes by pressure or influence directly or
indirectly brought by the Chief Justice of India. Equally,
it is a corollary that these judges are amenable to
influence and thereby they do not decide the cases posted
before them legally and objectively. The Court is subject to
pressures and decides cases under influence. These
accusations are flagrantly outrageous to scandalise the
Court. Though the contemnor has sought leave to modify this
statement, ultimately, in his amended statement, he did not
touch upon this aspect of the matter. In other words, as
stated earlier, he stood by his averments calculatedly made.
His justification that justification that justice
P.N.Bhagwati (as he then was) decided first S.P. Gupta’s
case when allegations against CJI Chandrachud were made has
no application. In a judicial proceedings taken by this
Court, the office of the chief Justice of India was directly
involved in appointment of additional judges or extension of
their tenure as additional Judges or their transfer. The
Chief Justice of India reclused himself from the Bench;
resultantly, the senior-most puisne judge came to preside
over that Bench. Thus, the contemnor has committed the
contempt of this Court under Article 129 of the
Constitution.
The question then is: what punishment is to be awarded
to the contemnor? As pointed out earlier, the repeated
assertions of the petitioner that he has no personal gain in
the litigation and was actuated by the public duty and laid
the petitions, bear no relevance or a defence. It is already
held that in a contempt proceedings, the motive, in other
words, the mens rea is not relevant. What would be the
effect of the act or conduct or imputation is the relevant
question for decision? It is true that in an indictable
offence under penal law generally mens rea is an essential
ingredient and the burden lies on the prosecution to prove
it affirmatively. In a contempt proceedings of summary
nature, the proof of mens rea is absolutely unnecessary.
What is material is the effect or the tendency of the act,
conduct or the publication of the words, written, spoken or
by signs or by visible representation or otherwise and
whether it scandalises or tends to scandalise or lowers or
tends to lower the authority of the court or prejudices or
tends to prejudice or interfere or tends to interfere with
the due course of any judicial proceedings or interferes or
tends to interfere with or obstruct the administration of
justice in any other manner. The tendency due to the
publication, whether by words written or spoken or by signs
or by visible representation or otherwise, of any matter or
the doing of any other act whatsoever is relevant and
material.
It is already noted that while dismissing the second
writ petition, this Court has pointed out the scandalous
nature of accusations which found place in the second writ
petition and when the petitioner persisted for consideration
of scandalous accusations to lay proceedings against the
Chief Justice of India for prosecution and other reliefs
referred to hereinbefore, he reiterated that he would stand
by those accusations. Resultantly this Court was constrained
to be into merits and dismissed the petition and initiated
suo motu contempt proceedings and got the notice issued to
him pointing out specifically 14 items which constituted
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scandalous and reckless litigations pleaded with
irresponsibility. He reiterated them in his preliminary
submissions with further justifications. He admitted that
many of them are strident and pungent. He modified some but,
as has been pointed out, by compounding further contempt. In
spite of the solicitor General pointing out the seriousness
of the accusations and the need for the petitioner to have
further consultation with a counsel of his choice the
contemnor remained unmoved. On April 15, 1996, when the
matter came up before this Bench for the first time after
the service of notice of the contempt and his filing the
preliminary submissions, the petitioner had orally stated
that some legal counsels in the Bar suggested to him that he
should modify the offending portions noted in the contempt
notice. It would, thus, be seen that he appears to have had
consultation with some advocates at the Bar and that he did
not retract his steps. He did not tender any unconditional
apology, though this Court is not bound to accept such an
unconditional apology for consideration. Considered from the
totality of the facts and circumstances, the gravest
magnitude of the contumacious conduct of the contemnor, we
are left with no opinion but to convict and sentence him to
undergo simple imprisonment for a period of three moths with
a fine or Rs. 2,000/- payable in a period of months and in
case of defaulted, to undergo further imprisonment for a
period of one month.
The contempt petition is accordingly disposed of.