Dr. D.C. Saxena Vs. Hon'ble The Chief Justice of India [1997] INSC 607 (19 July 1997)
K. RAMASWAMY
ACT:
HEADNOTE:
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 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 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 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;
(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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 im
