mpt Petition No 82 of 1992
WITH Writ Petition No 232 of 1992
Under Article 32 of the Constitution of India
Vijay Kumar and Shiv Kumar Suri for the PetitionerApplicant
Milan K Banerjee Attorney General DP Gupta Solicitor General VC Mahajan Kapil Sibal Mg
A Subhashii Gaurab Banarjee K Swamy Ms section Janani SK Battacharya and LK Poonam for the Respondents
The following Order of the Court was delivered This matter came up for our consideration on December 8 1992 pursuant to the order dated November 24 1992 to decide the appropriate 774 order which needs to be made in the existing situation
A brief resume of the events leading to the present stage may first be given
This Court has held that the Speaker while deciding the question of disqualification of a Member of the Legislative Assembly under the Tenth Schedule to the Constitution acts as a statutory authority in which capacity the Speaker s decision is subject to judicial review by the High Court and this Court
Pursuant thereto certain orders were made by this Court in proceedings arising out of the order of disqualification of certain members made by the contemner Dr H Borobabu Singh who holds the office of Speaker of the Manipur Legislative Assembly in spite of the clear decision of this Court that an order made under the Tenth Schedule by the Speaker relating to the disqualification of a Member of the Legislative Assembly is subject to judicial review and the Speaker while making an order under the Tenth Schedule acts merely as a statutory authority amenable to the court s jurisdiction in that capacity the contemner continued to resist the implementation of such orders made by this Court
The petitioner 1
Manipal Singh was then the Secretary of the Manipur Legislative Assembly
In his capacity as Secretary of the Assembly the petitioner 1
Manilal Singh took steps to implement this Court s orders
The allegation made by 1
Manilal Singh is that the contemner Dr H Borobabu Singh got annoyed with him for or his attempt to secure obedience and implementation of this Court s orders and therefore as an act of reprisal the contemner has made an order of his compulsory retirement
The petitioner 1
Manilal Singh therefore challenged the order of his compulsory retirement made by the contemner inter alia on the ground that it was mala fide being an act of reprisal by the contemner for the petitioner s obedience of this Court s orders
This Court stayed the operation of the impugned order of compulsory retirement of the petitioner I Mandal Singh as well as the order of is sub is suspension passed by the contemner
The petitioner then complained that in spite of this Court s orders the contemner was not permitting him of function as the secretary of the Manipur Legislative Assewbly and was also not paying him his salary and other dues and that another person had been appomted by the contemner to function as the Secretary
On July 22 1992 this Court made an order reiterating that the petitioner 1
Manilal Singh shall be allowed to function as the Secretary of the Manipur Legislative Assembly without delay and that all concerned with enable him to so function and some further directions were also given 775 On August 4 1992 another order was made by this Court as a result of the grievance made by the petitioner I Manilal Singh that in spite of the orders of this Court he was neither allowed to function as the Secretary of the Legislative Assembly nor had he been paid his salary etc
In that order this Court further directed the Chief Secretary of the State of Manipur to ensure that the direction given for payment of dues to the petitioner was promptly obeyed
When the matter was again taken up on August 25 1992 the petitioner I Manilal Singh stated that another order had been made on August 19 1992 declaring that the petitioner is to retire from service on August 31 1992 as Joint Secretary which was in disobedience of this Court s orders and was a further act of reprisal against him by the contemner
Accordingly in the order dated August 25 1992 this Court after recording that this action appears to be prima facie in violation of this Court s order stayed the operation of the order dated August 19 1992
The order after mentioning the statement made by the learned counsel for the Chief Secretary HV Goswami expressed this Court s concern at the apathy exhibited towards obedience of the mandate under Article 144 of the Constitution and after hearing all the counsel including Shri SK Bhattacharya learned counsel for the contemner directed that the Chief Secretary HV Goswami Deputy Secretary Manipur Legislative Assembly RK Chinglensana Singh and Dr H Borobabu Singh should be personally present in court at the next hearing which was fixed for September 8 1992
On September 8 1992 the matter was adjourned to September 9 1992
On September 9 1992 the Chief Secretary Manipur HV Goswami and RK Chinglensana Singh Deputy Secretary Manipur Legislative Assembly were personally present
On behalf of Dr H Borobabu Singh who did not appear a request was made by his counsel Shri Bhattacharya to adjourn the matter till after September 22 1992 on the ground that the Manipur Legislative Assembly was in session
The matter was therefore adjourned to September 25 1992
On September 25 1992 in spite of earlier order in the contempt proceeding directing Dr H Borobabu Singh to appear in person he did not appear
His counsel
Shri Bhattacharya filed an affidavit stating inter alia that Dr H Borobabu Singh is immune from such directions of the 776 court in view of his constitutional position as Speaker
Accordingly Shri Bhattacharya was heard on his objection which was found to be without substance
On September 25 1992 the Court while rejecting the contention of Shri Bhattacharya stated as under 
This is a case in which Dr Singh s function is not as a Speaker in the House
The facts of the case which are on record in this matter clearly show that Dr Singh was acting as Authority under the Tenth Schedule to the Constitution and in that capacity certain orders were passed which gave rise to the present contempt petition
In a petition filed by the petitioner Manilal Singh directions issued by this Court relating to his service conditions which have according to the allegations not been respected by Dr Singh
In this context and background we do not have any doubt that the capacity in which Dr Singh was functioning was not that of the Speaker of the House but as administrative head of the Secretariat of the Legislature in relation to the rights of one of the employees
Accordingly we hold that there is no merit at all in the plea raised regarding the jurisdiction of this Court and the objection is therefore rejected
We asked Mr G Ramaswamy learned Attorney General to examine the matter and indicate his opinion as to the enforceability of the directions of this Court requiring the personal appearance of Dr H Borobabu Singh in Court
On earlier occasion also learned Attorney General had indicated that this Court would have been justified in taking a far stricter view of the conduct of Dr Singh and it is an appropriate case where it is not only within the power of this Court but also its bounder duty to take such steps which will reassure the people of their faith in and respect for the Institution now that it is obvious that the indulgence granted so far to Dr H Borobabu Singh has been misplaced
Mr Altar Ahmed learned Additional Solicitor General appearing for the Union of India fully supports the opinion and submission of learned Attorney General
777 3
Mr Kapil Sibal who represents the Chief Secretary of Manipur also expressed his opinion on these lines  The remaining part of the order then considered the fact that Dr H Borobabu Singh was included as a Member of the Indian Parliamentary delegation to attend a conference abroad and the Court adjourned the matter to October 20 1992 requiring the contemner Dr H Borobabu Singh to give a written Undertaking before he left the country that he would appear in the Court and the Government of India was required to ensure compliance of that direction
It is sufficient to mention that the contemner Dr H Borobabu Singh did not give such an undertaking in spite of the persuasion of senior officers of the Government of India as well as the Union Home Minister as appears from the documents filed on behalf of the Government of India
Accordingly the Government of India did not permit the contemner to leave the country
When the matter was taken up on October 20 1992 the contemner Dr H Borobabu Singh did not appear in spite of the earlier direction given and the indulgence granted to him
However his counsel Shri Bhattacharya prayed for a short adjournment on the ground that he would be advising Dr H Borobabu Singh to file an unconditional affidavit to appear in person in court in pursuance to the direction of the court and to make a separate application for condoning his absence and exempting him from personal appearance in the court
In spite of the background we granted further indulgence to the contemner and accepting the request of Shri Bhattacharya adjourned the case to October 23 1992 stating that if in addition to the unconditional affidavit to appear personally in the court pursuant to the direction a separate application as indicated by Shri Bhattacharya for condoning his absence and exempting him from personal appearance was filed by the contemner the same would be considered on its merits
At the request of Shri Bhattacharya learned counsel for Dr H Borobabu Singh we again adjourned the matter to November 12 1992 recording his statement in the order as under  Mr SK Bhattacharya the learned counsel for Dr H Borobabu Singh states that he has been instructed personally by Dr H B Singh to make a statement in this Court that Dr HB Singh will be filing his affidavit in the terms of our order of the last date
We asked Mr Bhattacharya 778 to clarify whether our order has been correctly understood that the affidavit has to be filed giving an unconditional undertaking to appear in this Court in pursuance of a direction by this Court and the application which Dr H B Singh wants to make with a prayer for dispensing with his personal presence will be filed separately and be not a condition of the affidavit
He states that the position has been correctly understood by Dr H B Singh who has instructed Mr Bhattacharya to state accordingly
Mr Bhat tacharya further states that the affidavit could not be filed today as Dr H B Singh could not come to Delhi because of the prevailing deterioration of law and order situation due to insurgency in the eastern part of the country due to which he was advised by the authorities responsible for his security not to undertake a journey to Delhi at this stage
He has also referred to the partial disruption in the air services between Manipur and Delhi
Mr Bhattacharya adds that the affidavit shall be filed by the 5th or the 6th November 1992
 When the matter was taken on November 12 1992 the contemner Dr H Borobabu Singh was again not present and the only thing done by him in the meantime was to file an affidavit dated November 6 1992 indicating that he would not personally appear before the Court
Thus in spite of the clear statement made by Shri Bhattacharya on instructions of Dr H Borobabu Singh as stated by him and recorded in the order dated October 23 1992 the contemner once again remained absent and neither filed the requisite affidavit containing his undertaking to appear nor made any application praying for condoning his absence and exempting him from personal presence for cogent reasons
In these circumstances it became necessary to consider the making of necessary consequential orders
The matter was therefore adjourned to November 24 1992 to hear the learned Attorney General of India and all the other counsel appearing in the case for deciding the future course of action
On November 24 1992 the learned Solicitor General informed the Court that Mr G Ramaswamy had resigned from the office of Attorney General and therefore the matter may be adjourned to enable his successor in office to assist the court with his arguments
The matter was 779 therefore adjourned to December 8 1992
On December 8 1992 we have heard the learned Attorney General of India the Solicitor General on behalf of Union of India Shri Kapil Sibal learned counsel for the Chief Secretary of the State of Manipur Shri SK Bhattacharya learned counsel for the contemner Dr H Borobabu Singh and learned counsel for the petitioner
It may be mentioned that the contemner Dr H Borobabu Singh has filed affidavits the last being of December 7 1992 making it amply clear repeatedly that he would not obey the orders of this Court directing his personal presence in the contempt matter nor would he make any application for condoning his absence and exempting him from personal presence for any cogent reasons
The only reason indicated in the affidavit filed by Dr H Borobabu Singh and also reiterated by his counsel Shri SK Bhattacharya is that by virtue of the office of Speaker of the Manipur Legislative Assembly held by Dr H Borobabu Singh he is immune from the process of this Court even in a contempt proceeding where the direction for his personal presence has been given as a result of prima facie opinion formed by the court that he has wilfully disobeyed the orders of this Court in a capacity which does not relate to his functions as Speaker inside the House and has further deterred certain persons including the Chief Secretary of the State and officers of the Assembly Secretariat from acting in aid of this Court s directionsorders in addition to taking ad ministrative action against the petitioner
Manilal Singh Secretary of the Manipur Legislative Assembly as an act of reprisal for his acting in aid of this Court s orders
This stand has been taken and continues to be persisted in spite of the contention being considered and rejected expressly on merits including in the order dated September 25 1992
The question therefore is of the action to be taken and the kind of order which it would be appropriate to make in these circumstances for implementation of this Court s orders to uphold the majesty of law for preservation of the rule of law
The learned Attorney General submitted that the undisputed facts and the unequivocal stand taken by the contemner Dr H Borobabu Singh leave no doubt about his wilful and contumacious disregard and disobedience of this Court s orders which is without any doubt by itself sufficient to constitute criminal contempt of this Court
The learned Attor 780 ney General submitted that apart from the power which this Court has under the and the Rules framed thereunder the power of this Court under several provisions of the Constitution of India is wide enough to indicate that the procedure available to it for ensuring compliance of its orders directing the personal presence of the contemner Dr H Borobabu Singh are not confined merely to the provisions in the and the Rules framed thereunder
The learned Attorney General added that all steps considered necessary to ensure compliance of this Court s order requiring the personal presence in this Court of the contemner Dr H Borobabu Singh are available to this Court which has a constitutional obligation to uphold the rule of law
He submitted that the stage has now reached when this step can no longer be avoided due to the continuing contemptuous conduct of the contemner in persistently refusing to obey this Court s orders requiring his personal presence in this contempt matter
The learned Attorney General added that this Court also has the power to direct the Government of India to take the necessarily to produce the contemner Dr H Borobabu Singh in this Court if the ordinary course of requiring a magistrate to produce him in the court is considered inappropriate in the present case
The learned Solicitor General of India on behalf of the Government of India supported the submissions of the learned Attorney General of India and assured us that in case the Court considered it necessary to direct the Government of India to take the necessary steps to produce the contemner
Dr H Borobabu Singh the direction would be duly and promptly complied with Shri Kapil Sibal on behalf of the Chief Secretary of the State of Manipur also supported the submission and so did the counsel for the petitioner 1
Manilal Singh Shri SK Bhattacharya learned counsel for the contemner Dr H Borobabu Singh reiterated the stand taken by the contemner that by virtue of the office of the Speakar which he holds he is immune from the court s process even in a contempt matter like this which does not relate to his function as Speaker inside the House
The undisputed facts expose the conduct of the contemner Dr H Borobabu Singh evident from the statement contained in his affidavits filed in this Court refusing to obey the orders of this Court directing him to appear in person in this Court to enable the hearing of the contempt proceedings against him after the tentative opinion formed by this Court that his wilful and contemptuous violation of this Court s orders and 781 deliberate obstruction of the persons acting in the aid of this Court s orders coupled with his act of reprisal against the Secretary of the Legislative Assembly for obeying the orders made by this Court make out prima facie case of criminal contempt  was recorded in the orders made in the presence of his counsel and known to him
The contemner had refused to accept the notices sent to him directly but continued to be represented by counsel Shri SK Bhattacharya through whom he communicated with the Court in addition to filing some of his own affidavits to clearly indicate his refusal to appear in Court
The only reason given by him through counsel and in his affidavits is that he being Speaker of a Legislative Assembly is immune from process of court even in such a proceeding The present situation arises as a result of repeated and emphatic refusal of the contemner to appear in person in this Court after due notice of the fact that his presence is required before the court on the date fixed for the hearing of the contempt proceeding to answer this charge of criminal contempt committed by him by acts done which were not per formed as a Speaker within the House
Reference may now be made to some provisions of law applicable to the situation as indicated by the learned Attorney General and the other counsel supporting his submissions
The Rules to Regulate Proccedings for Contempt of the Supreme Court 1975  framed by this Court provide in Rule 3 that the Court may take action even suo motu in such a matter
Rule 6 requires the contemner unless otherwise ordered to appear in person before the Court as directed on the date fixed for hearing of the proceeding and to continue to remain present during hearing till the proceeding is finally disposed of by order of the Court
Rule 10 provides that the Court may direct the Attorney General or the Solicitor General to appear and assist the Court
It is in this manner that the Attorney General was directed to appear
and assist the Court which the Solicitor General appeared in this matter for the Union of India
Rule 11 provides that the Court may if it has reason to believe that the person charged is absconding or is otherwise evading service of notice or if he fails to appear in person or to continue to remain present in person in pursuance of the directions direct a warrant bailable or non bailable for his arrest addressed to one or more police officers and the warrant shall be executed by the officer or officers to whom it is 782 directed
These Rules therefore provides for procuring the personal appearance of the contemner in this Court if the Court has reason to believe that the contemner is evading service or he fails to appear in person in spite of the directions of this Court
In the present case the contemner s repeated and categorical refusal to appear in this Court in spite of this Court s orders and grant of considerable indulgence to him till now is clear from the statements made in his affidavits and through his counsel who has appeared for him throughout
The learned Attorney General the learned Solicitor General and Shri Kapil Sibal are right in their submission that the power of this Court in such matters is not confined merely to the provisions of the and the Rules framed thereunder but is plenary to punish any person for contempt of court and for that purpose to require his presence in person in this Court in the manner considered appropriate in the facts of the case
They refer particularly to Articles 129 and 142 apart from Article 145 of the Constitution of India
Article 129 says that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself Article 142 provides for enforcement of decrees and orders of Supreme Court and lays down that the Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person the discovery or production of any documents or the investigation or punishment of any contempt of itself Article 141 declares the binding effect of the law declared by the Supreme Court which is a clear provision to indicate that the meaning of law  is to be understood as declared by the Supreme Court
Obviously it is not for any one else including the Speaker to decide what the lay is and make an interpretation of the law  contrary to the declaration of law made by the Supreme Court
Article 144 contains the constitutional obligation of all authorities in the territory of India to act in aid of the Supreme Court
These provisions are well known and they are mentioned in this order once again in the present case merely for the benefit of the contemner who has wilfully and deliberately refused to obey and ignored not merely the orders of this Court but has also chosen to ignore the provisions in the Constitution itself to which he must have sworn allegiance before taking his seat as a Member 783 of the Manipur Legislative Assembly
The contention of the contemner s immunity from the process of this Court even in a contempt proceeding wherein a prima facie case of criminal contempt is made out against him requiring his personal presence to answer that charge and to be present at the hearing hinted by the contemner in his affidavits and raised by his counsel is totally misconceived and this was indicated to his counsel repeatedly
The immunity given by Article 381 of the Constitution is not to a Speaker and no other provision supports this submission
From the documents filed by the Union of India it is evident that even the Union Home Minister has strongly advised the conteimner to desist from the course he has chosen to adopt and to obey the orders of this Court which is his constitutional obligation
The present Attorney General as well as his predecessor in office and the Solicitor General have also categorically and repeatedly expressed their opinion that it is the duty of the contemner to obey the orders of this Court and appear in this Court in person as directed
Shri Kapil Sibal who appears for the Chief Secretary of the State of Manipur has also expressed the same view in his submissions
After hearing learned counsel at laugh on December 8 1992 we had reserved the order for further reflection
On further and in depth consideration of this matter on account of the fact that the contemner also happens to occupy the office of Speaker of a Legislative Assembly we find that there is no escape from the obvious and logical conclusion emerging from the submissions made by the learned Attorney General of India and endorsed by the learned Solicitor General of India and Shri Kapil Sibal
While we reach this unfortunate decision in discharge of our constitutional obligation we draw some solace from the fact that this situation is the creation of the contemner Dr H Borobabu Singh himself who continues to persist in his contumacy by repeatedly declaring that he would not obey the orders of this Court directing his personal appearance to participate in the contempt proceedings against him
It is unfortunate that a person who holds the constitutional office of Speaker of a Legislative Assembly has chosen to ignore the constitutional mandate that this country is governed by the rule of law and what the law is is for this Court to declare in discharge of its constitutional obligation which binds all in accordance 784 with Article 141 of the Constitution of India and Article 144 then says that all authorities are to act in aid of the orders made by this Court
The contemner has chosen to ignore also the obvious corollary of rule of law that no person is above law
Having done our best to make the contemner see reason and be present by granting him indulgence repeatedly to the extent that the learned Attorney General of India at one of the earlier stages said that our indulgence and leniency was being construed as the weakness of the court we are constrained to now take the only appropriate and logical course to which the court is driven in these circumstances
That obvious course is to require the production of the contemner Dr H Borobabu Singh in person before this Court giving such a direction to the authority considered to be appropriate in the circumstances of the case to ensure compliance of this order
It is our constitutional duty which requires us to make this order to uphold the majesty of law and justify the confidence of the people that no one in this country is above the law and governance is not of men but of the rule of law
It is unfortunate that this action has to be taken against a person who happens to be the Speaker of a Legislative Assembly but that does not permit us to apply the law differently to him when he was wilfully and contumaciouly driven the court to this course
We must remind ourselves that the rule of law  permits no one to claim to be above the law and it means be you ever so high the law is above you  It was said long back  to seek to be wiser than laws is forbidden by the law
We are also of the opinion that the issuance of a direction to any Magistrate to produce the contemner in this Court would be merely an exercise in futility in view of the obvious conduct of the contemner which includes the threat even to the Chief Secretary of the State as indicated by him
The learned Solicitor General of India appearing for the Union of India submitted that in case it is considered appropriate to issue such a direction to the Government of India necessary action in this behalf would be taken by the Government of India to comply with the order
We have no doubt that in the existing situation to which this Court has been driven by the wilful and contumacious conduct of the contemner himself the only appropriate order to make is to direct the Government of India to produce the contemner Dr H Borobabu Singh in person in this Court on the next date of hearing taking such steps as are necessary for the purpose direct accordingly
It is further clarified that the Government of India 785 would be entitled to take all such steps which are necessary including the use of minimilm force which may be required for compliance of this Court s order directing the production of the contemner in this Court
A copy of this order be sent forthwith by the Registrar Judicial to the Home Secretary Government of India for prompt compliance
The next date of hearing is fixed for March 23 1993 on which date the Government of India must produce the contemner Dr H Borobabu Singh before this Court
List on March 23 1993
ORDER In obedience to the earlier directions of this Court Dr H Borobabu Singh is present in person in Court
We take note of his earlier affidavit filed on 18393 that he has fully complied with all the orders and directions relating to the case of Manilal Singh
Dr Singh has also expressed regret for the unhappy events
We appreciate this gesture on his part though he could have done the same much earlier
We take note of this and drop all further proceedings in the matter
These contempt proceedings therefore come to an end
NVK Petitions dropped


Summary:
There is a difference between a tax like the income tax and a licence fee for carrying on an occupation trade or business
A licence lee on a business not only takes away the property of the licensee but also operates as a restric tion on his fundamental 573 right to carry on his business
Therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32
Under article 191 g of the Constitution a citizen has the right to carry on any occupation trade or business and the only restriction on this unfettered right is the author ity of the State to make a law relating to the carrying on of such occupation trade or business as mentioned in cl
6 of that article as amended by the Constitution First Amendment Act 1951
If therefore a licence fee imposed for carrying on an occupation trade or business cannot be justified on the basis of any valid law no question of its reasonableness can arise for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa tion trade or business under article 191 g and such infringement can properly be made the subject matter of a challenge under article 32 of the Constitution
Bye law No 1 of the Bye laws of the Town Area Committee of Jalalabad in the United Provinces provided that no person shall sell or purchase any vegetables or fruit within the prescribed limits of the Town Area Committee by whole sale or auction without paying the fees fixed by these bye laws to the licensee appointed by the Town Magistrate
Bye law No 4 b provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee
A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period of seven years applied for protection under article 32 contending that these bye laws infringed his fundamental right to carry on his trade guaranteed by article 19 1 g and were there fore void
Held that section 293 1 and section 298 2 J d of the UP Municipalities Act 1916 as amended at the time they were extended to the town areas in the United Provinces did not empower the Town Area Committee to make any bye law autho rising it to charge any fees otherwise than for the use and occupation of any property vested in or entrusted to the management of the Town Area Committee including any public street
The bye laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street are obvi ously ultra vires the powers of the Committee and there fore the bye laws cannot be said to constitute a valid law which alone may under article 19 6 of the Constitution impose a restriction on the right conferred by article 191 g
In the absence of any valid law authorising it such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on 74 574 his occupation trade or business which is guaranteed to him by article 19 1 g of our Constitution
Kairana case  and Ramji Lal vs Income tax Officer Mohindargarh  distinguished