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
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]
-----------------------
25
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.
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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25
