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Saturday, August 2, 2014

Contempt of Court - Editorial in Indian Express on report of Kuldip Singh Commission's report - Whether the commission is a court -Constitutional Bench upheld that The Commission constituted under the 1952 Act is a fact finding body to enable the appropriate Government to decide as to the course of action to be followed. Such Commission is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by the Commission is of a legal character and it has the power to administer oath will not clothe it with the status of Court. That being so, in our view, the Commission appointed under the 1952 Act is not a Court for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge. Moreover, Section 10A of the 1952 Act leaves no matter of doubt that the High Court has been conferred with the power to take cognizance of the complaint in respect of the acts calculated to bring the Commission or any member thereof into disrepute. Section 10A provides the power of constructive contempt to the Commission by making a reference to the High Court with a right of appeal to this Court. Our answer to the first question is, therefore, in the negative. In view of the above reasons, the contempt petitions are dismissed and the contempt notices are discharged. = CONTEMPT PETITION (CRL.) NO. 11 OF 1990 Dr. Subramanian Swamy …… Petitioner Vs. Arun Shourie …… Respondent = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41786

 Contempt of Court - Editorial in Indian Express on report of Kuldip Singh Commission's report - Whether the commission is a court -Constitutional Bench upheld that The Commission constituted   under the 1952 Act  is  a  fact finding body to enable the  appropriate  Government  to  decide  as  to  the
course of action to  be  followed.   Such  Commission  is  not  required  to adjudicate  upon  the  rights  of  the  parties  and  has  no   adjudicatory functions.  The Government is not bound to  accept  its  recommendations  or act upon its findings.  The mere fact that  the  procedure  adopted  by  the Commission is of a legal character and it has the power to  administer  oath will not clothe it with the status of Court.  That being so,  in  our  view, the Commission appointed under the 1952 Act is not a Court for the  purposes of Contempt of Courts Act even though it is  headed  by  a  sitting  Supreme Court Judge.     Moreover, Section 10A of the 1952 Act leaves no  matter  of doubt that the High  Court  has  been  conferred  with  the  power  to  take cognizance of the complaint in respect of the acts calculated to  bring  the Commission or any member thereof into disrepute.  Section 10A  provides  the power of constructive contempt to the Commission by making  a  reference  to the High Court with a right of appeal to  this  Court.  Our  answer  to  the first question is, therefore, in the negative.
 In view  of  the  above  reasons,  the  contempt  petitions  are dismissed and the contempt notices are discharged. =

“If shame had survived”
The legal opinion that  the  former  Chief  Justice  of  India,  Mr.  Y.  V.
Chandrachud, has  given  on  the  Kuldip  Singh  Commission’s  report  is  a
stunning  indictment.=
It so happened that  Justice  Kuldip  Singh,  the  then  sitting
Judge of the  Supreme  Court,  was  appointed  as  Chairman,  Commission  of
Inquiry under the Commissions of Inquiry  Act,  1952  (hereinafter  referred
to as ‘1952 Act’) to probe into alleged acts of  omissions  and  commissions
by Shri Ramakrishna Hegde, the former Chief Minister of Karnataka.  The  one
man Commission headed by  Justice  Kuldip  Singh  submitted  its  report  on
22.06.1990.=
In the contempt petition filed by Dr. Subramanian  Swamy
on 23.08.1990  under  Section  15  of  the  Contempt  of  Courts  Act,  1971
(hereinafter referred to as, “1971 Act”) against the then Editor  of  Indian
Express, Mr.  Arun  Shourie,
it  is  contended  that  the  editorial  is  a
scandalous statement in respect of a sitting Judge of the Supreme  Court  of
India and the judiciary.  It lowers the authority of this Court as  well  as
shakes public confidence in it and amounts  to  criminal  contempt  of  this
Court.
It is  submitted  that  unless  this  Court  acts  promptly  and  if
necessary, suo motu in the matter, sitting  Judges  would  be  helpless  and
unable to defend themselves,  and  in  the  process,  public  confidence  in
judges and the courts would be eroded.=

The  then   Attorney  General  Shri  Soli  Sorabjee  in  his  opinion  dated
27.08.1990 noted that  the  editorial  had,  prima  facie,  overstepped  the
limits of permissible criticism and the law of contempt, as was existing  in
the country, did not provide for truth as defence and, therefore, he  opined
that an explanation was called for and a notice could  be  issued  for  that
purpose.  In his view, the question
whether the contempt of a Commission  or
Commissioner appointed under the 1952 Act tantamounts  to  contempt  of  the
High Court or Supreme Court of which the Commissioner is member needs to  be
authoritatively settled by the Supreme Court in view of the reoccurrence  of
the issue. =
On 03.09.1990, the suo motu contempt  matterby the Hon’ble  the  Chief
Justice.
The proceeding of 03.09.1990 reads as under:

      “In Re : Arun Shourie and Anr.

      We have seen the editorial in  the  “Indian  Express”  of  August  13,
1990.  We have obtained the opinion of the Attorney General of India in  the
matter.  We consider that paragraphs 2 and 3 of the editorial tend  to  fall
within the  definition  of  ‘criminal  contempt’  in  Section  2(c)  of  the
Contempt of Courts Act, 1971.  =
 The two principal questions that  arise  for  consideration  and
need our answer are as follows:
(i)          When  a  sitting  Supreme  Court  Judge  is  appointed   as   a
Commissioner by the Central Government under the 1952  Act,  does  he  carry
with him all the powers and jurisdiction of  the  Supreme  Court?  In  other
words, whether the functions which  are  discharged  by  the  Supreme  Court
Judge as a Commissioner are purely statutory functions  independent  of  the
jurisdiction vested in the Supreme Court?
(ii)         Whether  truth  can  be  pleaded   as   defence   in   contempt
proceedings?

Conclusion

 The Commission constituted   under the 1952 Act  is  a  fact
finding body to enable the  appropriate  Government  to  decide  as  to  the
course of action to  be  followed.   Such  Commission  is  not  required  to
adjudicate  upon  the  rights  of  the  parties  and  has  no   adjudicatory
functions.  The Government is not bound to  accept  its  recommendations  or
act upon its findings.  The mere fact that  the  procedure  adopted  by  the
Commission is of a legal character and it has the power to  administer  oath
will not clothe it with the status of Court.  That being so,  in  our  view,
the Commission appointed under the 1952 Act is not a Court for the  purposes
of Contempt of Courts Act even though it is  headed  by  a  sitting  Supreme
Court Judge.     Moreover, Section 10A of the 1952 Act leaves no  matter  of
doubt that the High  Court  has  been  conferred  with  the  power  to  take
cognizance of the complaint in respect of the acts calculated to  bring  the
Commission or any member thereof into disrepute.  Section 10A  provides  the
power of constructive contempt to the Commission by making  a  reference  to
the High Court with a right of appeal to  this  Court.  Our  answer  to  the
first question is, therefore, in the negative.

35.         In view  of  the  above  reasons,  the  contempt  petitions  are
dismissed and the contempt notices are discharged.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41786

 

 CHIEF JUSTICE, ANIL R. DAVE, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, SHIVA KIRTI SINGH

                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                   CONTEMPT PETITION (CRL.) NO. 11 OF 1990



Dr. Subramanian Swamy                                 ……  Petitioner

                   Vs.

Arun Shourie                                      ……  Respondent

                                    WITH


                   CONTEMPT PETITION (CRL.) NO. 12 OF 1990




                                  JUDGMENT

R.M. LODHA, CJI.


            In the issue of Indian Express of August 13, 1990, an  editorial
was published bearing the caption “If shame had  survived”.   The  editorial
reads as under:
                       “If shame had survived”
The legal opinion that  the  former  Chief  Justice  of  India,  Mr.  Y.  V.
Chandrachud, has  given  on  the  Kuldip  Singh  Commission’s  report  is  a
stunning  indictment.    Succinct,  understated  to  the  point   of   being
deferential, scrupulously adhering to facts and  law,  eschewing  completely
the slightest attribution of any motive to the Commission, the opinion is  a
model of rectitude.  Nothing in the report survives it  “evidence”  that  it
was agreed would not be pressed relied on as a fulcrum; evidence of the  one
witness who was the hub of the  decisions  wholly  disregarded;  indictments
framed on “probable possibility”, theories invented to  read  meanings  into
documents  and  the  manifest,  straightforward  explanation  ignored;   the
Commission itself as well as the energetic prosecutor himself declaring  one
day that neither had a shred of evidence which cast a  doubt  on  Hegde  and
the very next day declaring a conclusion; refusing to common  witnesses  for
cross-examination on the pretext that the Commission did not have the  power
to call them – this in the face of clear judgments  to  the  contrary;  then
invoking a section of the Indian Evidence Act  which  applies  to  a  person
making a dying declaration; ignoring the fact that the man who  is  said  to
have been benefited has lost Rs.55 lakh which he  deposited;  insinuating  –
and building an entire indictment on the insinuation – that the builder  had
fabricated a  front,  when  the  actual  record  shows  that  he  was  doing
everything openly and with all  the  formalities  which  the  law  required;
ignoring the fact that the land was to be given  to  the  builder  at  three
times the cost of acquisition and that on  top  of  it  development  charges
were to be levied from 4 to  6  times  the  cost  of  acquisition;  ignoring
entirely the fact that the land was never transferred and that  it  was  not
transferred solely because of the  then  Chief  Minister’s  insistence  that
rules be framed under which all such cases would be dealt with.  It  is  the
longest possible list of suppresso veri suggesto falsi.

If there had been any sense of honour or shame, a  Judge  would  never  have
done any of this.  If there were any residual sense of honour or shame,  the
Judge having done any of it and having  been  found  doing  it,  would  have
vacated his seat.  But this is India.   Of  1990,  the  Commissioner  Kuldip
Singh having perpetrated such perversities will continue to sit in  judgment
on the fortunes and reputations of countless citizens. He will  continue  to
do so from nothing less than the Supreme Court of India itself.

Such is our condition.  And so helpless are we that there is nothing we  can
do about such a “Judge”.  Save one thing.  The  only  way  to  mitigate  the
injuries that such  persons  inflict  on  citizens  is  for  all  of  us  to
thoroughly examine the indictments or  certificates  they  hand  out.   Only
that exercise will show  up  these  indictments  and  certificates  for  the
perversities which they are and  only  in  that  way  can  their  effect  be
diluted.  “Who has the time to read voluminous reports, to  sift  evidence?”
But if the issue is important enough for us to form an opinion on it, it  is
our duty to find the time to examine such reports, to examine  as  well  the
conduct of the commissioners who perpetrate them.”

2.          It so happened that  Justice  Kuldip  Singh,  the  then  sitting
Judge of the  Supreme  Court,  was  appointed  as  Chairman,  Commission  of
Inquiry under the Commissions of Inquiry  Act,  1952  (hereinafter  referred
to as ‘1952 Act’) to probe into alleged acts of  omissions  and  commissions
by Shri Ramakrishna Hegde, the former Chief Minister of Karnataka.  The  one
man Commission headed by  Justice  Kuldip  Singh  submitted  its  report  on
22.06.1990.

3.          These two contempt matters, one by Dr. Subramanian Swamy[1]  and
the other[2] suo motu arise from the editorial published in  Indian  Express
as quoted above.    In the contempt petition filed by Dr. Subramanian  Swamy
on 23.08.1990  under  Section  15  of  the  Contempt  of  Courts  Act,  1971
(hereinafter referred to as, “1971 Act”) against the then Editor  of  Indian
Express, Mr.  Arun  Shourie,  it  is  contended  that  the  editorial  is  a
scandalous statement in respect of a sitting Judge of the Supreme  Court  of
India and the judiciary.  It lowers the authority of this Court as  well  as
shakes public confidence in it and amounts  to  criminal  contempt  of  this
Court.  It is  submitted  that  unless  this  Court  acts  promptly  and  if
necessary, suo motu in the matter, sitting  Judges  would  be  helpless  and
unable to defend themselves,  and  in  the  process,  public  confidence  in
judges and the courts would be eroded.

4.          It is pertinent to notice here that the then  Chief  Justice  of
India obtained opinion of the Attorney General  for  India  in  the  matter.
The  then   Attorney  General  Shri  Soli  Sorabjee  in  his  opinion  dated
27.08.1990 noted that  the  editorial  had,  prima  facie,  overstepped  the
limits of permissible criticism and the law of contempt, as was existing  in
the country, did not provide for truth as defence and, therefore, he  opined
that an explanation was called for and a notice could  be  issued  for  that
purpose.  In his view, the question whether the contempt of a Commission  or
Commissioner appointed under the 1952 Act tantamounts  to  contempt  of  the
High Court or Supreme Court of which the Commissioner is member needs to  be
authoritatively settled by the Supreme Court in view of the reoccurrence  of
the issue.

5.          On 03.09.1990, the suo motu contempt  matter  and  so  also  the
contempt petition filed by Dr. Subramanian Swamy came up  for  consideration
before the three Judge Bench of this Court headed by the Hon’ble  the  Chief
Justice.  The proceeding of 03.09.1990 reads as under:

      “In Re : Arun Shourie and Anr.

      We have seen the editorial in  the  “Indian  Express”  of  August  13,
1990.  We have obtained the opinion of the Attorney General of India in  the
matter.  We consider that paragraphs 2 and 3 of the editorial tend  to  fall
within the  definition  of  ‘criminal  contempt’  in  Section  2(c)  of  the
Contempt of Courts Act, 1971.  We, therefore, direct that notice  returnable
on 8th October, 1990 be issued to the alleged contemners calling  upon  them
to show cause why proceedings for contempt of this Court under  Article  129
of the Constitution should not be initiated against them in respect  of  the
offending editorial published by them.  The contemners shall be  present  in
the Court in person on 8th October, 1990.  A copy of the  opinion  given  by
the Attorney General in the matter should accompany the notice to be  issued
to the contemners.  They may file  their  affidavits  in  support  of  their
defence on or before 8th October, 1990.

Issue notice to the Attorney General of  India  to  appear  and  assist  the
Court in hearing the matter.

CONTEMPT PETITION NO.       OF 1990 :

      Learned Attorney General of India has also drawn our attention  to  an
issue of the ‘Current’ (August 25-31, 1990) which  contains  an  Article  by
M.V. Kamath.  We will consider that matter separately later on.

Dr. Subramanian Swamy vs. Mr. Arun Shourie:

      Issue notice returnable on  8th  October,  1990  stating  therein  why
contempt proceedings should not be initiated.”

6.           Respondent  Arun  Shourie  submitted  his  reply  affidavit  on
13.10.1990.  We shall refer to his defence and objections at an  appropriate
place little later.  Suffice, however, to note at this  stage  that  in  the
counter affidavit, the respondent prayed that,  in  view  of  the  sensitive
nature of the facts, he would choose  to  refrain  from  setting  out  those
facts in the affidavit but would prefer to put them in the form of a  signed
statement in a sealed cover for the  perusal  of  the  Court  which  may  be
treated as an integral part of the counter affidavit.   The Court,  however,
on 04.03.1991 rejected his prayer and observed that the procedure  suggested
by the respondent was not an acceptable procedure and was inconsistent  with
recognized form of the pleadings.  The respondent  was  granted  liberty  to
withdraw the sealed cover from the Court.  He was given  an  opportunity  to
file additional affidavit.

7.          The matters remained dormant for many years.  On  25.08.1998[3],
a three  Judge  Bench  directed  that  these  matters  be  placed  before  a
Constitution Bench.
8.          This is how these matters have come up for consideration  before
the  Constitution  Bench.   We  have  heard  Mr.  Mohan  Parasaran,  learned
Solicitor General and Mr. Ashok H. Desai, learned  senior  counsel  for  the
respondent.


9.          It may  be  observed  immediately  that  the  learned  Solicitor
General and learned senior counsel for  the  respondent  in  the  course  of
arguments agreed that for exercising the suo motu power for  contempt  under
Article 129 of  the  Constitution  of  India,  the  limitation  provided  in
Section 20 of the 1971 Act has  no  application.    There  is  no  challenge
before us about the legal position that there  are  no  implied  or  express
limitations on the inherent powers  of  the  Supreme  Court  of  India  and,
therefore, no limitations can be read into Article 129 of the Constitution.

10.         The two principal questions that  arise  for  consideration  and
need our answer are as follows:
(i)          When  a  sitting  Supreme  Court  Judge  is  appointed   as   a
Commissioner by the Central Government under the 1952  Act,  does  he  carry
with him all the powers and jurisdiction of  the  Supreme  Court?  In  other
words, whether the functions which  are  discharged  by  the  Supreme  Court
Judge as a Commissioner are purely statutory functions  independent  of  the
jurisdiction vested in the Supreme Court?
(ii)         Whether  truth  can  be  pleaded   as   defence   in   contempt
proceedings?

11.         We shall take up the second question first. Some of  the  common
law countries provide that truth could be a defence if the comment was  also
for the public benefit. Long back the Privy Council in Ambard[4]  held  that
reasoned or legitimate criticism of judges or  courts  is  not  contempt  of
court. The Privy Council held:

“The path of criticism is a public way; the wrong headed  are  permitted  to
err therein: provided that members  of  the  public  abstain  from  imputing
improper motives to those taking part in the administration of justice,  and
are genuinely exercising a right of criticism, and not acting in  malice  or
attempting to  impair  the  administration  of  justice,  they  are  immune.
Justice is not a cloistered virtue:  she  must  be  allowed  to  suffer  the
scrutiny and respectful, even though outspoken, comments of ordinary men.”

12.         In Wills[5] the High Court of  Australia  suggested  that  truth
could be a defence if the comment was also for the public benefit. It  said,
“…The revelation of truth – at all events when its  revelation  is  for  the
public benefit – and the making of a fair criticism based  on  fact  do  not
amount to a contempt of court though the truth  revealed  or  the  criticism
made is such as to deprive the court or judge of public confidence…”.

13.         The legal  position  with  regard  to  truth  as  a  defence  in
contempt proceedings is now statutorily settled by Section 13  of  the  1971
Act (as substituted by Act 6 of 2006). The Statement of Objects and  Reasons
for the amendment of Section 13 by Act 6 of 2006 read as follows:

“The existing provisions of the Contempt  of  Courts  Act,  1971  have  been
interpreted in various judicial decisions to the effect  that  truth  cannot
be pleaded as a defence to a charge of contempt of court.

2. The National  Commission  to  Review  the  Working  of  the  Constitution
(NCRWC) has also in its report, inter alia, recommended that in  matters  of
contempt,  it  shall  be  open  to  the  Court  to  permit  a   defence   of
justification by truth.

3. The Government has been advised that the amendments to  the  Contempt  of
Courts Act,  1971  to  provide  for  the  above  provision  would  introduce
fairness in procedure and  meet  the  requirements  of  Article  21  of  the
Constitution.

4. Section  13  of  the  Contempt  of  Courts  Act,  1971  provides  certain
circumstances under which contempt is  not  punishable.  It  is,  therefore,
proposed to substitute the said section, by an amendment.

5. The Contempt of Courts (Amendment) Bill, 2003 was introduced in  the  Lok
Sabha on the 8th May, 2003 and the same  was  referred  to  the  Department-
related Parliamentary Standing Committee on Home  Affairs  for  examination.
The Hon’ble Committee considered the said Bill in its meeting  held  on  the
2nd September, 2003. However, with the dissolution of the  13th  Lok  Sabha,
the Contempt of Courts (Amendment) Bill, 2003 lapsed. It is proposed to  re-
introduce the said Bill with modifications of a drafting nature.”

14.         Clause 13(b), now expressly provides that  truth  can  be  valid
defence in contempt proceedings. Section 13, which has two clauses  (a)  and
(b), now reads as follows:

“13. Contempts not  punishable  in  certain  cases-Notwithstanding  anything
contained   in    any    law    for    the    time    being    in    force,—

(a) no court shall impose a sentence under this Act for a contempt of  court
unless it is satisfied that the  contempt  is  of  such  a  nature  that  it
substantially interferes, or tends substantially to interfere with  the  due
course of justice;
(b) the  court  may  permit,  in  any  proceeding  for  contempt  of  court,
justification by truth as a valid defence if it is satisfied that it  is  in
public interest and the request  for  invoking  the  said  defence  is  bona
fide.”

15.         The Court may now permit truth as a defence if  two  things  are
satisfied, viz., (i) it is in public  interest  and  (ii)  the  request  for
invoking said defence is bona fide.
16.         A two Judge Bench of this Court in R.K. Jain[6] had an  occasion
to consider Section 13 of the 1971 Act, as substituted by Act 6 of 2006.  In
para 39 (page 311 of the report), the Court said:

“……..The  substituted  Section  13  represents  an   important   legislative
recognition of one of the fundamentals of our value system i.e.  truth.  The
amended section enables the court to permit  justification  by  truth  as  a
valid defence in any contempt  proceeding  if  it  is  satisfied  that  such
defence is in public interest and the request for invoking  the  defence  is
bona fide. In our view, if a speech or  article,  editorial,  etc.  contains
something which appears to be contemptuous and this Court or the High  Court
is called upon to initiate proceedings under the Act and  Articles  129  and
215 of the Constitution,  the  truth  should  ordinarily  be  allowed  as  a
defence unless the Court finds that it is only a camouflage  to  escape  the
consequences of deliberate or malicious attempt to scandalise the  court  or
is  an  interference  with  the  administration  of  justice.   Since,   the
petitioner has not even suggested  that  what  has  been  mentioned  in  the
editorial is incorrect or that the  respondent  has  presented  a  distorted
version of the facts, there is no warrant for  discarding  the  respondent’s
assertion that whatever he has written is based on true facts and  the  sole
object of writing the editorial was to enable the authorities  concerned  to
take corrective/remedial measures.”


Thus, the two Judge Bench has held that  the  amended  section  enables  the
Court to permit justification by truth as a valid defence  in  any  contempt
proceedings if it is satisfied that such defence is in public  interest  and
the request for invoking the defence is bona fide. We approve  the  view  of
the two Judge Bench in R.K. Jain6. Nothing further needs  to  be  considered
with regard to second question since  the  amendment  in  contempt  law  has
effectively rendered this question redundant.

17.         It is now appropriate to  consider  the  first  question  as  to
whether a sitting Supreme Court Judge who is appointed as a Commissioner  by
the Central Government under the 1952 Act  carries with him all  the  powers
and jurisdiction of the Supreme Court.  In order to  answer  this  question,
it is appropriate to refer to relevant provisions of the two  Acts,  namely,
the 1971 Act and the 1952 Act.  1971 Act has been enacted by the  Parliament
to define and limit the powers of certain courts in punishing  contempts  of
courts and to regulate their procedure in  relation  thereto.  Section  2(a)
defines  “contempt  of  court”  to  mean  ‘civil  contempt’   or   ‘criminal
contempt’.  Civil contempt is defined in Section  2(b)  while  Section  2(c)
defines criminal contempt.  Omitting the definition of  civil  contempt,  we
may reproduce the definition of criminal contempt in  the  1971  Act,  which
reads:
“2(c) “criminal contempt” means the publication (whether  by  words,  spoken
or written, or by signs, or by visible representation, or otherwise) of  any
matter   or   the   doing   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 proceeding; or
(iii) interferes or tends to  interfere  with,  or  obstructs  or  tends  to
obstruct, the administration of justice in any other manner;”

18.          The  three  expressions,  “court”  in  clause  (i),   “judicial
proceeding” in clause (ii) and “administration of justice” in  clause  (iii)
of Section  2(c)  are  really  important,  to  answer  the  first  question.
Sections 12 and 15 of 1971 Act are the other two sections  which  have  some
bearing.  Section 12 prescribes punishment for contempt of  court.   Section
15 deals with cognizance of criminal contempt by the Supreme  Court  or  the
High Court on its own motion or on a motion made by the Advocate General  or
any other person with the consent in writing of the Advocate  General.   The
expression “Advocate General” in clauses (a) and (b)  of  Section  15(1)  in
relation to the Supreme  Court  means  Attorney  General  or  the  Solicitor
General.

19.         1952 Act provides for appointment of Commissions of Inquiry  and
for vesting such Commissions with certain powers.  Section  2(a)(i)  defines
“appropriate Government” which  means the Central  Government,  in  relation
to a Commission  appointed  by  it  to  make  an  inquiry  into  any  matter
relatable to any of the entries enumerated in List I or List II or List  III
in the Seventh Schedule to the Constitution and  the  State  Government,  in
relation to a Commission appointed by it to make an inquiry into any  matter
relatable to any of the entries enumerated in List II or List   III  in  the
Seventh Schedule to the Constitution.  In relation to  the  State  of  Jammu
and Kashmir, there is a different provision. Sections 4 and 5 deal with  the
powers  and  additional  powers  of  Commission.   Under  Section   4,   the
Commission has powers of a civil court while trying a suit  under  the  Code
of Civil  Procedure, 1908, in respect of the matters, namely, (a)  summoning
and enforcing the attendance of any  person  from  any  part  of  India  and
examining him on oath; (b) requiring the discovery  and  production  of  any
document; (c) receiving  evidence  on  affidavits;  (d)  requisitioning  any
public record or  copy  thereof  from  any  court  or  office;  (e)  issuing
commissions for the  examination  of  witnesses  or  documents  etc.   Under
Section 5(4), the Commission is deemed to be a  civil  court  and  when  any
offence as is described in Section 175, Section 178,  Section  179,  Section
180 or Section 228 of the Indian Penal Code is committed  in   the  presence
of  the  Commission,  the  Commission  may,  after   recording   the   facts
constituting the offence and the statement of the accused  as  provided  for
in the Code of Criminal Procedure, forward the case to a  magistrate  having
jurisdiction to try the same.  Under Section  5(5),  any  proceeding  before
the Commission is deemed to be a judicial proceeding within the  meaning  of
Sections 193 and 228 of the Indian Penal Code.

20.         Section 5A empowers the Commission to utilize  the  services  of
certain officers and investigation  agencies  for  conducting  investigation
pertaining to inquiry.  Section 10 makes provision for every member  of  the
Commission and every officer appointed or authorized by  the  Commission  in
exercise of functions under the Act is deemed to be a public servant  within
the meaning of Section 21 of the IPC.

21.         Section 10A provides for penalty for acts  calculated  to  bring
the Commission or any member thereof into disrepute.  The provision  clothes
the High Court with power to take cognizance of an offence  stated  in  sub-
Section (1) upon a complaint in writing made by a member  of  Commission  or
an officer of the Commission authorized by it in this  behalf.   Under  sub-
Section (5), the High Court taking  cognizance  of  an  offence  under  sub-
Section (1) is mandated to try the case in  accordance  with  the  procedure
for the trial of warrant cases instituted otherwise than on a police  report
before a court of a Magistrate.  Section 10A reads as under:

“10A. Penalty for acts calculated to bring  the  Commission  or  any  member
thereof into disrepute. (1)  If  any  person,  by  words  either  spoken  or
intended to be read, makes or publishes any  statement  or  does  any  other
act, which is calculated to bring the Commission or any member thereof  into
disrepute, he shall be punishable with simple imprisonment for a term  which
may extend to six months, or with fine,  or with both.


(2) Notwithstanding anything contained in the Code  of  Criminal  Procedure,
1973, (2 of 1974) when an offence under sub-section (1) is alleged  to  have
been committed, the High Court may take cognizance of such offence,  without
the case being committed to it, upon a  complaint  in  writing,  made  by  a
member of a Commission or an officer of the Commission authorised by  it  in
this behalf.

 (3) Every complaint referred to in sub-section  (2)  shall  set  forth  the
facts which constitute the offence alleged, the nature of such  offence  and
such other particulars as are reasonably sufficient to give  notice  to  the
accused of the offence alleged to have been committed by him.

 (4) No High Court shall take cognizance of  an  offence  under  sub-section
(1) unless the complaint is made within six months from the  date  on  which
the offence is alleged to have been committed.

 (5) A High Court taking cognizance of  an  offence  under  sub-section  (1)
shall try the case in  accordance  with  the  procedure  for  the  trial  of
warrant cases instituted otherwise than on a police report  before  a  court
of a Magistrate:

  Provided that the personal attendance of a member of  a  Commission  as  a
complainant   or   otherwise   is    not    required    in    such    trial.

 (6) Notwithstanding anything contained in the Code of  Criminal  Procedure,
1973, (2 of 1974) an appeal  shall  lie  as  a  matter  of  right  from  any
Judgment of the High Court to the Supreme Court, both on facts and  on  law.

 (7) Every appeal to the  Supreme  Court  under  sub-section  (6)  shall  be
preferred within a period of thirty days from the date of judgment  appealed
from:

  Provided that, the Supreme Court may entertain an appeal after the  expiry
of the said period of thirty days if it is satisfied that the appellant  had
sufficient cause for not preferring the appeal within the period  of  thirty
days.”

 22.        As is seen from above, the Commission has the  powers  of  civil
court for the limited purpose as set  out  in  that  Section.   It  is  also
treated as a civil court for the purposes of Section 5(4).  The  proceedings
before the Commission are deemed  to  be  judicial  proceedings  within  the
meaning of Sections 193 and 228 of the Indian  Penal  Code.   But  the  real
issues are:  whether the above provisions  particularly  and  the  1952  Act
generally would bring the Commission comprising of a sitting  Supreme  Court
Judge within the meaning of “Court”  under  Section  2(c)(i)?  Whether   the
proceedings before the Commission are judicial proceedings for the  purposes
of Section 2(c) (ii)?  Whether the functioning of such  Commission  is  part
of the administration of justice within the meaning of Section 2(c)(iii)?

23.         We do not have  any  doubt  that  functions  of  the  Commission
appointed under the 1952 Act  are  not  like  a  body  discharging  judicial
functions or judicial power.  The Commission appointed under  the  1952  Act
in our view is not a Court and making the inquiry or determination of  facts
by the Commission is not of judicial character.

24.         Sections 19 and 20 of the Indian Penal Code define the words
 “Court” and the “Court of Justice” as under:

“19. The word “Judge” denotes  not  only  every  person  who  is  officially
designated as a Judge, but also every person, — who is empowered by  law  to
give, in any legal proceeding, civil or criminal, a definitive judgment,  or
a judgment which, if  not  appealed  against,  would  be  definitive,  or  a
judgment which, if confirmed by some other authority, would  be  definitive,
or
who is one of a body of persons, which body of persons is empowered  by  law
to give such a judgment.
20. The words “Court of Justice” denote a Judge who is empowered by  law  to
act judicially alone, or a body of Judges which is empowered by law  to  act
judicially as  a  body,  when  such  Judge  or  body  of  Judges  is  acting
judicially.”

 25.        Though the 1971 Act does not define the term ‘Court’ but in  our
opinion, the ‘Court’ under that Act means the authority which has the  legal
power to give a judgment which, if confirmed by some other authority,  would
be definitive.  The Court is an institution  which  has  power  to  regulate
legal rights by the delivery of definitive judgments,  and  to  enforce  its
orders by legal sanctions and if its procedure is judicial in  character  in
such matters as the taking of evidence and the administration of oath,  then
it is a court.  The Commission constituted under the 1952 Act does not  meet
these pre-eminent tests of a Court.

26.         According  to Stephen (Stephen’s Commentaries  on  the  Laws  of
England, 6th Edn., page 383) in every Court, there must be  at  least  three
constituent parts – the  ‘actor’,  ‘reus’  and  ‘judex’:  the  ‘actor’,  who
complains of an injury done; the ‘reus’ or defendant, who is called upon  to
make satisfaction; and the ‘judex’ or judicial power, which  is  to  examine
the truth of the fact and to determine the law arising upon the fact and  if
any injury appears to have been done, to ascertain, and by its  officers  to
apply, the remedy.



27.         In Bharat Bank Ltd.[7], the Constitution Bench was  seized  with
the question whether Industrial Tribunal is a court within  the  meaning  of
Article 136 of the Constitution of India.  Mehr Chand  Mahajan,  J.  (as  he
then was) referred to the statement of Griffith, C.J. in  Huddart  Parker  &
Co.[8] and observed, “if a body which  has  power  to  give  a  binding  and
authoritative decision is  able  to  take  action  so  as  to  enforce  that
decision, then, but only then, according to the definition quoted,  all  the
attributes of  judicial  power  are  plainly  present.”   Mukherjea,  J.  on
consideration of Shell Co.[9],  Huddart  Parker  &  Co.8  and  Rola  Co.[10]
stated, “the other fundamental test which distinguishes a  judicial  from  a
quasi-judicial  or  administrative  body  is   that   the   former   decides
controversies according to law, while the latter is not  bound  strictly  to
follow the law for its decision. The  investigation  of  facts  on  evidence
adduced by the parties may be a common feature in both judicial  and  quasi-
judicial tribunals, but the difference between the  two  lies  in  the  fact
that in a judicial proceeding the Judge  has  got  to  apply  to  the  facts
found, the law of the land which is fixed and  uniform.  The  quasi-judicial
tribunal, on the other hand, gives its decision on the  differences  between
the parties not in accordance with fixed rules of law but on  principles  of
administrative policy or convenience or what appears to be just  and  proper
in the circumstances of a particular  case.  In  other  words,  the  process
employed by an Administrative Tribunal in coming  to  its  decision  is  not
what is known as “judicial process”.


28.         In Brajnandan Sinha[11], a three Judge Bench of this  Court  had
an occasion to consider the  question  whether  the  Commissioner  appointed
under Public Servants (Inquiries) Act, 1850 (Act 37 of 1850) is a Court.  In
that case, Coke on Littleton and Stroud was referred that says that  “Court”
is the place where justice  is  judicially  administered.   The  Court  also
considered Section 3 of the Indian Evidence Act and Sections 19  and  20  of
the Indian Penal Code and then observed, “the pronouncement of a  definitive
judgment is thus considered the essential  sine  qua  non  of  a  Court  and
unless and until a binding and authoritative judgment  is  pronounced  by  a
person or body  of  persons,  it  cannot  be  predicated  that  he  or  they
constitute a Court.”  Bharat Bank  Ltd.7  was  also  referred  and  so  also
decisions of this Court in Maqbool Hussain[12]   and  S.A.  Venkataraman[13]
and it was noted that in S.A. Venkataraman13  following  Maqbool  Hussain12,
the Constitution Bench laid down that both  finality  and  authoritativeness
were the essential tests of a judicial pronouncement.  The Court  said  that
in order to constitute  a  Court  in  the  strict  sense  of  the  term,  an
essential condition is that the Court should have, apart  from  having  some
of the trappings of a judicial tribunal, power  to  give  a  decision  or  a
definitive judgment which has finality and authoritativeness which  are  the
essential  tests  of  a  judicial  pronouncement.   With  reference  to  the
provisions of Public Servants (Inquiries) Act vis-à-vis Contempt  of  Courts
Act, 1952, the three Judge Bench held that the Commissioner appointed  under
Public Servants (Inquiries) Act  is  not  a  Court  within  the  meaning  of
Contempt of Courts Act, 1952.

29.         We are in full agreement with the legal  position  exposited  in
Brajnandan Sinha11 and approve the same.

30.         The judgment of the full Bench of Madras High Court In Re :  Mr.
Hayles, Editor of “The Mail” and Anr.[14] deserves consideration  now.  That
was a case where a sitting Judge of the Madras High Court was  appointed  as
a member of the Industrial  Tribunal  under  Section  7  of  the  Industrial
Disputes Act.  The alleged contempt with which the contemnors  were  charged
with contempt were both in relation to the proceedings  for  the  Industrial
Tribunal, though the Industrial Tribunal was presided over  by  the  sitting
Judge  of  the  Madras  High  Court.   The  disputes  between  workers   and
managements of Amalgamations Limited which owned the  newspaper  “The  Mail”
fell for adjudication before the Industrial Tribunal.  The  contempt  notice
was issued by the Tribunal to the counsel for the Editor Govind  Swaminathan
and the Editor Hayles to show cause as to why action for  contempt  may  not
be initiated for criticism of the Tribunal. The  respondent  challenged  the
show cause notice on the ground  that  the  Tribunal,  though  headed  by  a
sitting Judge, did not have power to punish  for  contempt.   While  dealing
with the above challenge, the full Bench of the Madras High Court held  that
a Judge of the High Court when appointed as sole member  of  the  Industrial
Tribunal, did not have the powers of a Judge of that High
Court to punish persons for contempt of the Tribunal even under Article  215
of the Constitution of India.

31.         The Division Bench of the Madras High Court in  P.  Rajangam[15]
had an occasion to consider the question whether a writ of certiorari  could
be issued to quash the inquiry made by the Magistrate under Section  176  of
the Code of Criminal Procedure read with Police  Standing  Order  issued  by
the Government of Madras.  While dealing with this question,  the  principal
aspect that was under consideration before the Division Bench of the  Madras
High Court with regard to the nature of such  inquiry  was  whether  it  was
judicial or quasi judicial or non judicial. The Division Bench  referred  to
the decision of this Court in Brajnandan Sinha11 and  ultimately  held  that
the object of such inquiry was nothing more than  to  furnish  materials  on
which action could be taken or not and the report by itself would purely  be
recommendatory and not one effective proprio vigore.
32.         In Shri  Ram  Krishna  Dalmia[16],  this  Court  held  that  the
inquiry by the Commission under the 1952 Act was neither a  judicial  nor  a
quasi judicial proceeding attracting the issue of  appropriate  writs  under
Article 226 of the Constitution of India.

33.         The  two  Judge  Bench  of  this  Court  in  Dr.  Baliram  Waman
Hiray[17]  was concerned with a question whether  a  Commission  of  Inquiry
constituted under Section 3 of the 1952 Act is a Court for the  purposes  of
Section 195 (1)(b) of the  Code  of  Criminal  Procedure,  1973.  The  Court
observed:

“A Commission of Inquiry is not a court properly so called. A Commission  is
obviously appointed by the appropriate government ‘for  the  information  of
its mind’ in order [pic]for it to decide as to the course of  action  to  be
followed. It is therefore  a  fact-finding  body  and  is  not  required  to
adjudicate  upon  the  rights  of  the  parties  and  has  no   adjudicatory
functions. The government is not bound to accept its recommendations or  act
upon its findings. The mere fact that the procedure adopted by it  is  of  a
legal character and it has the power to administer an oath will  not  impart
to it the status of a court.”


            The Court further observed:

“The least that is required  of  a  court  is  the  capacity  to  deliver  a
‘definitive judgment’, and merely because the procedure adopted by it is  of
a legal character and it has power to administer an oath will not impart  to
it the status of a court. That being so, it must be held that  a  Commission
of Inquiry appointed by the appropriate government  under  Section  3(1)  of
the Commissions of Inquiry Act is not a court for the  purposes  of  Section
195 of the Code.”


33.1.       The Court agreed with the following observations of  the  Nagpur
High Court in M.V.Rajwade[18] :

“The Commission in question was obviously appointed by the State  Government
“for the information of its own mind”, in order that it should not  act,  in
exercise of its executive power, “otherwise  than  in  accordance  with  the
dictates of justice and equity” in ordering a departmental  enquiry  against
its officers. It was, therefore, a fact-finding body meant only to  instruct
the mind of the government without producing  any  document  of  a  judicial
nature. The two cases are parallel, and the decision must be as  in  ‘In  re
Maharaja Madhava Singh (D)’ [LR (1905) 31 IA 239]  that the  Commission  was
not a court.
The term “court” has not been defined in the Contempt of Courts  Act,  1952.
Its definition in the Indian Evidence Act, 1872, is not  exhaustive  and  is
intended only for purposes of the Act. The  Contempt  of  Courts  Act,  1952
however, does contemplate a “court of Justice” which as defined  in  Section
20, Penal Code, 1860 denotes “a  Judge  who  is  empowered  by  law  to  act
judicially”. The word “Judge” is defined in Section  19  as  denoting  every
person—
‘Who is empowered by  law  to  give,  in  any  legal  proceeding,  civil  or
criminal, a definitive judgment,  or  a  judgment  which,  if  not  appealed
against, would be definitive, or a judgment  which,  if  confirmed  by  some
other authority, would be definitive....’
The minimum test of a “court of  justice”,  in  the  above  definition,  is,
therefore, the legal power to give a judgment which, if  confirmed  by  some
other authority, would be definitive. Such is the case with  the  Commission
appointed  under  the  Public  Servants   (Inquiries)   Act,   1850,   whose
recommendations constitute a  definitive  judgment  when  confirmed  by  the
government. This, however, is not  the  case  with  a  Commission  appointed
under  the  Commissions  of  Inquiry  Act,  1952,  whose  findings  are  not
contemplated by law as liable at any stage to confirmation by any  authority
so as to assume the character of a final decision.”

34.         We agree with the view in Dr. Baliram Waman Hiray17 and  approve
the decision of the Nagpur High Court in  M.V.Rajwade18.   We  are  also  in
agreement with the submission of Shri  Mohan  Parasaran,  learned  Solicitor
General that a Commission appointed under the 1952 Act is in the  nature  of
a statutory Commission and merely because a Commission of Inquiry is  headed
by a sitting Judge of the Supreme Court, it does not become an extended  arm
of this Court.  The Commission constituted   under the 1952 Act  is  a  fact
finding body to enable the  appropriate  Government  to  decide  as  to  the
course of action to  be  followed.   Such  Commission  is  not  required  to
adjudicate  upon  the  rights  of  the  parties  and  has  no   adjudicatory
functions.  The Government is not bound to  accept  its  recommendations  or
act upon its findings.  The mere fact that  the  procedure  adopted  by  the
Commission is of a legal character and it has the power to  administer  oath
will not clothe it with the status of Court.  That being so,  in  our  view,
the Commission appointed under the 1952 Act is not a Court for the  purposes
of Contempt of Courts Act even though it is  headed  by  a  sitting  Supreme
Court Judge.     Moreover, Section 10A of the 1952 Act leaves no  matter  of
doubt that the High  Court  has  been  conferred  with  the  power  to  take
cognizance of the complaint in respect of the acts calculated to  bring  the
Commission or any member thereof into disrepute.  Section 10A  provides  the
power of constructive contempt to the Commission by making  a  reference  to
the High Court with a right of appeal to  this  Court.  Our  answer  to  the
first question is, therefore, in the negative.

35.         In view  of  the  above  reasons,  the  contempt  petitions  are
dismissed and the contempt notices are discharged.


       ….………..……………………CJI.
(R.M. Lodha)


       …….………..……………………J.
(Anil R. Dave)


                 …….………..……………………J.                     (Sudhansu      Jyoti
Mukhopadhaya)


       …….………..……………………J.
(Dipak Misra)


NEW DELHI;                          …….………..……………………J.
JULY 23, 2014.   (Shiva Kirti Singh)

-----------------------
[1]
       [Contempt Petition (Crl.) No.11 of 1990 Dr. Subramanian Swamy v.
Arun Shourie]
[2]    [Contempt Petition (Crl.) No.12 of 1990 In the matter of Mr. Arun
Shourie]


[3]    These contempt  matters  relate  to  comments  made  by  the  alleged
contemnors against Shri Justice Kuldip Singh  after  he  had  submitted  his
report as  Chairman  of  the  Enquiry  Commission  set  up  by  the  Central
Government.
      In Contempt Petition No.9/90 an objection  has  been  raised  by  Shri
D.D. Thakur, the learned senior counsel appearing for the alleged  contemnor
that the petition is not maintainable since consent of the Attorney  General
for India or the Solicitor General for India was not  obtained  as  required
by Section 15 of the Contempt of Courts Act, 1971.  A question arises as  to
whether in the absence of  the  consent  of  the  Attorney  General  or  the
Solicitor General suo moto proceedings can be initiated against the  alleged
contemnor. Shri D.D. Thakur has, however, submitted that since  the  alleged
contempt arose more than one year  back,  Section  20  of  the  Contempt  of
Courts Act, 1971 would operate as a bar against the initiation of  suo  moto
proceedings for contempt against the alleged contemnor.
      In Contempt Petition No.11 and 12 of 1990 there is the opinion of  the
Attorney General expressing the view   that when a Supreme  Court  Judge  is
appointed as a Commissioner in a Commission of Enquiry  he  does  not  carry
with him all the powers and  jurisdiction  of  the  Supreme  Court  and  the
functions discharged by him  are  statutory  functions  independent  of  the
jurisdiction vested  in  the  Supreme  Court  and,  therefore,  the  alleged
contempt of a sitting  Judge  of  the  Supreme  Court  in  relation  to  the
statutory functions discharged by him as a Commissioner  cannot  in  law  be
regarded as a contempt of Supreme Court itself.
      The learned counsel for the alleged contemnors have urged  that  truth
can be pleaded as a defence in contempt proceedings and  that  the  decision
of this Court in Perspective Publications (Pvt.) Ltd. & Anr.  vs.  State  of
Maharashtra, (1969) 2 SCR 779 needs re-consideration.  In our  opinion,  the
questions that arise for consideration  in  these  matters  are  of  general
public importance which are required to  be  considered  by  a  Constitution
Bench.  We,  therefore,  direct  that  the  matters  be  placed   before   a
Constitution Bench.
[4]    Ambard v. Attorney-General for Trinidad and Tobago; [(1936) AC 322].
[5]    Nationwide News Pty. Ltd. v. Wills; [(1992) 177 CLR 1].
[6]    Indirect Tax practitioners’ Association v. R.K. Jain; [(2010) 8 SCC
281]
[7]    Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi;
[AIR 1950 SC 188]
[8]    Huddart Parker & Co. Pty. Ltd. v. Moorehead [8 CLR 330]
[9]    Shell Co. of Australia, Ltd. v. Federal Commissioner of Taxation
[(1931) AC 275]
[10]   Rola Co.(Australia) Pty. Limited v. Commonwealth [69 CLR 185]
[11]   Brajnandan Sinha v. Jyoti Narain; [(1955) 2 SCR 955]
[12]   Maqbool Hussain v. State of Bombay; [AIR 1953 SC 325]
[13]   S.A. Venkataraman v. Union of India [AIR 1954 SC 375]
[14]   In Re : Mr. Hayles, Editor of “The Mail” and Anr.; [AIR 1955 Madras
1]
[15]   P. Rajangam, Sub-Inspector of Police and Ors. v. State of Madras and
ors. [AIR 1959 Madras 294]
[16]   Shri Ram Krishna  Dalmia v. Shri Justice S.R.Tendolkar and ors;
[1959 SCR 279]
[17]   Dr. Baliram Waman Hiray v. Justice B. Lentin and ors; [(1988) 4 SCC
419]
[18]   M.V.Rajwade, I.A.S., Dist. Magistrate v. Dr. S.M. Hassan and ors.;
[AIR 1954 Nagpur 71]

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