Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
CASE NO.:
Contempt Petition (crl.) 2 of 2001
PETITIONER:
J. R. PARASHAR, ADVOCATE & ORS.
Vs.
RESPONDENT:
PRASANT BHUSHAN, ADVOCATE & ORS.
DATE OF JUDGMENT: 28/08/2001
BENCH:
G.B. Pattanaik & Ruma Pal
JUDGMENT:
RUMA PAL, J
The allegations in this contempt application relate to an
incident which is alleged to have taken place on 30th December,
2000. According to the petition, on that day, the respondents led
a huge crowd and held a dharna in front of this Court and
shouted abusive slogans against this Court including slogans
ascribing lack of integrity and dishonesty to the Institution. This
was done in the presence of the media. The petition alleges that
the petitioners protested but were attacked and assaulted by the
respondents who called them brokers of this Court. The
petition goes on to state that that evening at 6.00 P.M while the
petitioners were watching the police officials trying to disperse
the crowd, the respondents again attacked, abused and assaulted
the petitioners. On the next day at 1.00 P.M. the petitioners
lodged a complaint with the Tilak Marg, Police Station. A copy
of the complaint has been annexed to the petition. According to
the petition the dharna, slogan shouting and assault on the
petitioners were designed to compel the Court to decide a
pending application filed by the respondents before this Court in
the respondents favour.
Given the allegations in the petition that the respondents had
incited a crowd by shouting slogans attacking the integrity of the
Judges of this Court, notices were issued to the respondents of the
application, so that they could give their version of the incident, if
it had taken place at all.
Each of the three respondents have filed separate affidavits in
response to the notice. All three respondents have admitted that
there was a dharna outside the gates of this Court on 30th
December, 2000. The dharna had been organized by the Narmada
Bachao Andolan and the gathered crowd were persons who lived
in the Narmada Valley and were aggrieved by the majority
judgment of this Court relating to the building of the dam on the
Narmada River.
As far as respondent No. 1 is concerned, he has asserted that
while he supported the cause and had espoused it by appearing as
counsel before this Court, he did not approve of the holding of a
dharna as a way of protesting against the judgment of this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
Court. He has denied that he took part in the dharna although,
he says, he did nothing to stop it. He has also denied that he
shouted any slogan against the Court nor did he assault, abuse or
threaten any of the petitioners.
As far as respondent No. 2 is concerned, she has denied that
any incident involving the petitioners, as alleged in the petition,
had taken place and asserted that the allegations that the
petitioners were threatened or abused or assaulted were false and
fabricated. She has admitted participation in the dharna and
also to have made speeches and raised slogans but has said that to
her knowledge, no slogan was raised or speech made impugning
the integrity of the Judges of this Court. She has sought to justify
the holding of the dharna as a legitimate form of protest against
the judgment which had been delivered by this Court in
connection with the building of the dam on the Narmada river.
Apart from giving the background of the Narmada Bachao
Andolan and the merits of the case of the oustees whose case she
represents, the respondent No. 2 has said in her affidavit:
The Superior Courts have recently shown a
disturbing tendency to use the power of
contempt against persons who have been
criticizing the Courts and their judgments.
A judiciary which insulates itself from
criticism by using the power of Contempt, is
bound to insensitive to the people that it is
meant to serve. This does not bode well for
the future of our republic
.I will continue to help them raise
their voices in protest against this system
even if I have to do so against the Judiciary
and the Courts. I will continue to do so as
long as I can, even if I have to be punished
for contempt for doing that.
The respondent No. 3 also filed an affidavit in response to the
notice. The respondent No. 3 has denied that she had raised any
slogan against the Court. According to the respondent No.3, she
had left the dharna at about 6.00 p.m. and that no such incident,
as alleged in the petition or the FIR had taken place. She has
asserted her right to participate in any peaceful protest that she
chose to. She has clarified that she has never, either in writing or
in any public forum, cast aspersions on the Court or the integrity
of the Judges. However, according to the respondent No. 3, she
has faced legal harassment for her writing, the latest incident
being the present proceedings. She has stressed the need for
Courts not to be intolerant of criticism or expressions of dissent
as this would mark the beginning of the end of democracy.
This was followed by three paragraphs which are quoted
verbatim:
On the grounds that judges of the Supreme
Court were too busy, the Chief Justice of
India refused to allow a sitting judge to head
the judicial enquiry into the Tehelka
scandal, even though it involves matters of
national security and corruption in the
highest places.
Yet, when it comes to an absurd, despicable,
entirely unsubstantiated petition in which all
the three respondents happen to be people,
who have publicly though in markedly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
different ways questioned the polices of
the government and severely criticized a
recent judgment of the Supreme Court, the
Court displays a disturbing willingness to
issue notice.
It indicates a disquieting inclination on the
part of the Court to silence criticism and
muzzle dissent, to harass and intimidate
those who disagree with it. By entertaining
a petition based on an FIR that even a local
police station does not see fit to act upon,
the Supreme Court is doing its own
reputation and credibility considerable
harm.
On the returnable date, the respondents appeared in person.
Their further presence was dispensed with. By an order dated
23rd April 2001, the Additional Solicitor General was appointed
Amicus Curiae and requested to assist the Court.
At the hearing, the learned Additional Solicitor General
submitted that the paragraphs in the affidavits of the respondents
2 and 3 quoted earlier appeared to be contumacious. The
petitioners, who appeared in person, addressed the Court in a
manner which not only ill became their standing as Advocates of
this Court but also belied their claims to be champions of this
Courts dignity.
The respondent No. 1 submitted that the allegations made in
the petition should not be accepted as the police who were
present all along had refused to register an FIR based on the
complaint of the petitioners. Learned counsel for the respondent
No. 2 contended that the petition was grossly defective and
should not have been accepted by the Registry of this Court at all.
Apart from that, it was contended that what was stated by the
respondent No. 2 in her affidavit was a criticism of the Courts
judgment and not contumacious. The respondent No. 3,
appearing in person, stated that she had nothing to add to her
affidavit and if that amounted to contempt then she was prepared
to face the consequences.
Before considering the merits of the case, it is necessary to
highlight principles relating to the law of contempt which though
well settled bear repetition.
A civil society is founded on a respect for the law. If every
citizen chose to break the law, we would have no society at all, at
least not a civil one. It is this respect for the law and of the law
enforcing agencies that, somewhat paradoxically, ensures the
freedoms recognised in the Constitution. The respect is at best a
fragile foundation. While it is to be built and sustained by the
conduct of the persons administering the law, it has to be shored
up by sanctions for actual breaches of the law and for actions
destroying that respect. The law of contempt is framed for the
second purpose.
That is why although under Article 19(1)(a) of the
Constitution, all citizens are guaranteed the right to freedom of
speech and expression, sub-Article (2) provides:
Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing
law, or prevent the State from making any
law, in so far as such law imposes
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
reasonable restrictions on the exercise of the
right conferred by the said sub-clause
.. in relation to contempt of
court..
Apart from the power conferred by the Constitution on the
Supreme Court and each High Court to punish contempts of
itself, the Contempt of Courts Act, 1971 (referred to as the Act)
has empowered the Courts to punish actions which fall within
the definition of civil and criminal contempt in that Act.
If what is alleged in the petition were true then it would be a
case of criminal contempt and Criminal Contempt has been
defined in the Act as meaning 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
(i) scandalizes or tends to scandalize, 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
This does not mean that a judgment is not open to fair
criticism. Section 5 of the Act says that a person shall not be
guilty of contempt of court for publishing any fair comment on
the merits of any case which has been heard and finally decided.
The operative word is fair. In other words, in the guise of
criticizing a judgment, personal criticism of the Judge is
impermissible. The law as it stands today is what was said by the
Privy Council in 1936 :
..no wrong is committed by any
member of the public who exercises the
ordinary right of criticising in good faith in
private or public the public act done in the
seat of justice. The path of criticism is a
public way : the wrongheaded are permitted
to err therein : provided that members of the
public abstain from imputing improper
motives to those taking part in the
administration of justice, and are genuinely
exercising a right of criticism and not acting
in malice or attempting to impair the
administration of justice, they are immune.
Justice is not a cloistered virtue : she must
be allowed to suffer the scrutiny and
respectful even though outspoken comments
of ordinary men.
To ascribe motives to a Judge is to sow the seed of distrust in
the minds of the public about the administration of justice as a
whole and nothing is more pernicious in its consequences than to
prejudice the mind of the public against judges of the Court who
are responsible for implementing the law . Judges do not defend
their decisions in public and if citizens disrespect the persons
laying down the law, they cannot be expected to respect the law
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
laid down by them. The only way the Judge can defend a
decision is by the reasoning in the decision itself and it is
certainly open to being criticised by anyone who thinks that it is
erroneous All we would ask is that those who criticise us will
remember that, from the nature of our office, we cannot reply to
their criticisms. We cannot enter into public controversy. Still
less into political controversy. We must rely on our conduct
itself to be its own vindication .
This, in brief, is the substantive law which is relevant for the
purposes of the case before us.
As far as the procedure is concerned at this stage we note
only those principles which are relevant for a decision on the
issues involved in this case and start with the initiation of
proceedings. Sections 14 and 15 of the 1971 Act both deal with
the procedure for taking cognizance in cases of criminal
contempt. In cases where the contempt is in the face of the
Supreme Court or High Court, the Court acts suo motu. In cases
of criminal contempt other than a contempt referred to in Section
14, the Supreme Court or the High Court may under Section
15(1) take action on its own motion or on a motion made by
(a) the Advocate-General, or
(b) any other person, with the
consent in writing of the
Advocate-General,
(c) in relation to the High Court for
the Union territory of Delhi, such
Law Officer as the Central
Government may, by notification
in the Official Gazette, specify in
this behalf, or any other person,
with the consent in writing of
such Law Officer.
xxx xxx xxx
Explanation. In this section,the
expressionAdvocate-Generalmeans,-
-
(a) In relation to the Supreme Court,
the Attorney General or the Solicitor-
General:
The underlying rationale of clauses (a), (b) and (c) appears
to be that when the Court is not itself directly aware of the
contumacious conduct, and the actions are alleged to have taken
place outside its presence, it is necessary to have the allegations
screened by the prescribed authorities so that the Court is not
troubled with frivolous matters. The Sanyal Committee which
had been set up in 1961 to consider and suggest reforms to the
existing law of contempt and whose recommendations formed the
basis for the present Act, explained the need for this screening:
In the case of criminal contempt, not being
contempt committed in the face of the Court,
we are of the opinion that it would lighten
the burden of the court, without in any way
interfering with the sanctity of the
administration of justice, if action is taken
on a motion by some other agency. Such a
course of action would give considerable
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
assurance to the individual charged and the
public at large.
The actual proceedings for contempt are quasi-criminal and
summary in nature. Two consequences follow from this. First, the
acts for which proceedings are intended to be launched must be
intimated to the person against whom action is proposed to be
taken with sufficient particularity so that the persons charged with
having committed the offence can effectively defend themselves.
It is for this reason Section 15 requires that every motion or
reference made under this section must specify the contempt of
which the person charged is alleged to be guilty. The second
consequence which follows from the quasi-criminal nature of the
proceeding is that if there is reasonable doubt on the existence of a
state of facts that doubt must be resolved in favour of the person or
persons proceeded against. In addition this Court has framed
Rules under, inter-alia, Section 23 of the Act providing in detail for
the procedure to be followed by the Court and its Registry on the
one hand and the complainant/respondent on the other.
This brings us to the present proceedings. Learned counsel
for the respondent No.2 was correct when he submitted that the
petition was shabbily drafted and procedurally grossly defective.
In fact almost every one of the Rules framed by this Court have
been violated. Rule 4 (a) directs that every petition under rule 3(b)
or (c) shall contain
(i) the name, description and place of
residence of the petitioner or
petitioners and of the persons
charged;
It is, therefore, mandatory that the places of residence of
both the petitioners and the respondents are given. Yet each of
the five persons named as petitioners has given the Bar Library or
the Lawyers Chamber as his address. The non-compliance with
Rule 4(a) is more shocking when it comes to the Respondents.
The respondent No.1s address has been given as his chamber.
The respondent No.2 has been described as Leader Narmda (sic)
Bachao Andolan and the Respondent No.3 as the Booker Prize
Winner. Both, their addresses have been given as C/o the
respondent No.1 at his legal chambers in the premises of this
Court.
A more serious flaw is the verification of the petition. Rule
4(b) requires that The petition shall be supported by an
affidavit. There are five named petitioners yet except for the
respondent No.1 no one else has either signed the petition or
affirmed it.
Again under Rule 3 like Section 15 of the Act, the Court
may take action in cases of criminal contempt either
a) suo motu ; or
b) on a petition made by Attorney-General,
or Solicitor General; or
c) on a petition made by any person, and in
the case of a criminal contempt with the
consent in writing of the Attorney-
General or the Solicitor-General.
Rule 5 provides that only petitions under Rules 3(b) and (c)
shall be posted before the Court for preliminary hearing and for
orders as to issue of notice. It is clear from Rule 5 that the matter
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
could have been listed before this Court by the Registry as a
petition for admission only if the Attorney General or Solicitor
General had granted his consent. In this case, the Attorney
General had specifically declined to deal with the matter and it
does not appear that any request was made to the Solicitor
General to give his consent.
Of course, this Court could have taken suo motu cognizance
had the petitioners prayed for it. They had not. Even if they
had, it is doubtful whether the Court would have acted on the
statements of the petitioners had the petitioners been candid
enough to have disclosed that the police had refused to take
cognizance of their complaint. In any event the power to act suo
motu in matters which otherwise require the Attorney General to
initiate proceedings or at least give his consent must be exercised
rarely. Courts normally reserve this exercise to cases where it
either derives information from its own sources, such as from a
perusal of the records, or on reading a report in a newspaper or
hearing a public speech or a document which would speak for
itself. Otherwise sub-section (1) of Section 15 might be rendered
otiose .
When a matter is listed before the Court, the Court assumes
that the formalities in connection with the filing have been
scrutinized by the Registry of this Court that the proper procedure
has been followed as it is the duty of the Registry to scrutinise the
petition to see whether it is in order before placing it before the
Court for consideration. There is no occasion for this Court to
assume the task of the Registry before considering the merits of
each matter. Had our attention been drawn to the procedural
defects, we would have had no hesitation in rejecting the
application in limine on this ground alone.
As to the merits, we may clarify here that our enquiry is
limited to the alleged contempt of this Court by the respondents.
We are not concerned with any scuffle that may or may not have
taken place during the dharna. That is a matter entirely personal
to the petitioners and does not call for an enquiry in this
jurisdiction. But we are concerned with the holding of the dharna
and the allegation that slogans had been shouted which
denigrated the judiciary.
Holding a dharna by itself may not amount to contempt. But
if by holding a dharna access to the courts is hindered and the
officers of court and members of the public are not allowed free
ingress and egress, or the proceedings in Court are otherwise
disrupted, disturbed or hampered, the dharna may amount to
contempt because the administration of justice would be
obstructed. There is no allegation in the petition that the
participants in the dharna had picketed the gates of this Court and
prevented lawyers or litigants from entering and leaving the
Court premises. Nor is it the petitioners case that the dharna
disturbed or prevented the Courts from functioning.
While holding that a dharna held to protest a decision of a
court may not per se amount to contempt, we must not be
understood as approving the holding of a dharna before the
Court. On the other hand it is deprecated and must be
discouraged otherwise every disgruntled litigant could adopt this
method of ventilating his grievance. It is, in any case, an
inappropriate form of protest since the object of holding a dharna
is either to raise public opinion or to exhibit the extent of public
opinion against a decision of a court. Neither of these objects
weigh with courts when deciding a case. Judges are required to
decide what they think is right according to the law applicable
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
and on the material placed before them and not be swayed by
public opinion on any particular issue.
The allegations of shouting of abusive slogans cannot be
accepted merely on the basis of the statements in this petition.
The procedural flaws in the petition, as noted earlier are not mere
technicalities. They are as vital to the acceptability of the petition
and its contents. Where there is no other legally admissible
evidence before the Court and the only material which the Court
can take into account are the statements contained in the petition,
the petition assumes a particular importance. Apart from the
defective nature of the petition, the unexplained reluctance on the
part of the four petitioners to affirm an affidavit verifying the
facts contained in the petition, the failure to even attempt to
obtain the consent of the Solicitor General and most importantly
the refusal of the police station to record an FIR on the basis of
the complaint lodged by the petitioner No. 1 are telling
circumstances against the case in the petition. Admittedly, the
police personnel were present at the time of the incident. Their
refusal to record the FIR on the petitioners complaint is,
therefore, significant. We have also noted that there is no
allegation in the complaint that the respondents 1 and 2 had
shouted defamatory statements against the Court. On the other
hand, we have the three affidavits filed by the respondents where
the respondent Nos. 1 and 3 have categorically denied on oath
that they shouted any slogans and the respondent No. 2 has
denied shouting any slogan which could be termed as
contumacious. There is no reason why their statements should be
rejected. In the circumstances, we are not prepared to direct any
further enquiry into the matter by requiring parties to lead
evidence, particularly when the statements in the complaint filed
by the petitioners are materially discrepant with the allegations in
the petition.
This should have concluded the matter in favour of the
respondents - had it not been for the statements made in the
affidavits of respondents Nos. 2 and 3 which we have quoted
earlier. There can be no doubt that the filing of an affidavit is
publication within the definition of criminal contempt. An
affidavit is not a secret document. It forms part of the Court
records and is available to and accessible by the public. The
question is whether the statements made in the affidavits of the
respondent Nos. 2 and 3 could be termed to be fair criticism or do
the comments impute improper motives to those taking part in the
administration of justice?
Respondent No. 2 has spoken generally of the superior
Courts using the power of contempt against persons who have
been criticising the Courts and their judgments. According to
the respondent No. 2s counsel, this reaction was in response to a
statement in the petition which appeared to the respondent No. 2
to be one of the bases for issuing the notice against her.
It is true that the notice did not specify the contumacious acts
with which the respondent was charged in terms of Rule 6 read
with Form I. Only a copy of the petition had been served on the
respondents along with the notice. It would not be unreasonable
for the respondent No.2 to assume that every statement contained
in the petition formed part of the charge. In the petition, it has
been stated that the Honble Judges of the Supreme Court are
pious constitutional authority and are not open for public and
press to criticize, comment, shout defamatory and derogatory
slogans against its verdict. Apart from the shouting of
defamatory slogans, the rest of the sentence does not in fact
correctly state the law. As we have said earlier, Courts like any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
other institution do not enjoy immunity from criticism as long as
the criticism is fair, reasonable and temperate and does not
accuse Judges of discharging their duties for improper motives
or on extraneous considerations .
No personal motive has been ascribed by the respondent No.
2 to any particular Judge. Her comments are general in nature and
may be construed as the expression of a perceived error in the
decisions of superior Courts in their contempt jurisdiction.
Therefore, according to the standards of fair criticism noted
earlier and giving the respondent No. 2 the benefit of the doubt,
we do not intend to take any further action against respondent
No. 2 for her comments regarding the superior Courts in her
affidavit.
However, the respondent No. 3 appears to us, prima-facie, to
have committed contempt. She has imputed motives to specific
Courts for entertaining litigation or passing orders against her.
She has accused Courts of harassing her (of which the present
proceeding has been cited as an instance) as if the judiciary were
carrying out a personal vendetta against her. She has brought in
matters which were not only not pertinent to the issues to be
decided but has drawn uninformed comparisons to make
statements about this Court which do not appear to be protected
by the law relating to fair criticism. We are conscious that the
respondent No. 3 has said before us that she stood by the
comments made even if they were held to be contumacious. At
the same time, we are also aware that when the statement was
made, the respondent had not been called on formally to defend
herself against this charge. The prescribed procedure will have
to be followed.
For the aforementioned reasons, while dismissing the
proceedings initiated on the basis of the petition against all three
respondents, we direct that notice in the prescribed form be
issued to the respondent No.3 as to why the respondent No. 3
should not be proceeded against for contempt for the statements
in the three paragraphs of her affidavit set out earlier in this
judgment.
.J.
(G.B. Pattanaik)
J.
(Ruma Pal)
August 28, 2001
Andre Paul TerenceAmbard V. The Attorney General of Trinidad and Tobago AIR 1936 PC 141.
See
also Aswini Kumar Ghose V. Arabinda Bose AIR 1953 SC 75; Rama Dayal Markarha V. State of Ma
dhya
Pradesh AIR 1978 SC 921: 1978(3) SCR 497; Re: V. Ajay Kumar Pandey, Advocate JT 1998 (6) SC
571;
Rustom Cawasjee Cooper V. Union of India AIR 1970 SC 1318; Perspective Publications (O) Ltd.
V. The
State of Maharashtra AIR 1971 SC 221; Re: Sanjiv Datta 1995 (3) SCC 619
Rama Dayal Markarha V. State of Madhya Pradesh (ibid) p.928
Regina V. The commissioner of Police of the Metropolis 1967 (2) WLR 1204, 1207
See S.K. Sarkar v. Vinay Chandra Misra 1981 (1) SCC 436
See P.N. Duda V. P. Shiv Shankar 1988 (3) SCC 167
S.K. Sarkar V. V.C. Misra (supra)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
See Rustom Cawasjee Cooper V. Union of India AIR 1970 SC 1318; Perspective Publications (
P) Ltd.
The State of Maharashtra AIR 1971 SC 221; and Rama Dayal Markarha V. State of Madhya Pradesh
AIR
1978 SC 921
5
27