Criminal Miscellaneous Petition No 260 Of 1988
Under Section 151a and b of the Contempt of Courts Act1971 read with its explanation 1 and Rule 3a b and c of Contempt of Supreme Court Rules 1965
Randhir Jain for the Petitioner
B Datta Additional Solicitor General Dr YS Chitale AK Ganguli N Nettar GS Narayan Gopal Subramanian Mukul Mudgal PH Parekh Sanjay Bharthari and R K Joshi for the Respondents
The following Judgments of the Court were delivered SABYASACHI MUKHARJI J
By an order dated 15th March 1988 we declined in this matter to initiate contempt proceedings under section 151 a and b of the hereinafter called the Act  read with rule 3a b and c of the Supreme Court Contempt of Court Rules 1975
We also on that date disposed of the application for intervention filed by Shri RN Trivedi
We stated that we will indicate our reasons by a separate judgment
We do so herein Shri P Shiv Shankar who at the relevant time was the Hon ble Minister for Law Justice and Company Affairs delivered a speech before a meeting of the Bar Council of Hyderabad on 28th November 1987
Shri PN Duda who is an advocate practising in the Supreme Court has drawn our attention to that speech
According to him by that speech respondent No 1 Shri P Shiv Shankar has made statements against the Supreme Court which are derogatory to the dignity of this Court attributing this Court with partiality towards economically affluent sections of the people and has used language which is extremely intemperate undignified and unbecoming of a person of his stature and position It was stated that Shri P Shiv Shankar formerly held the office of a Judge of the High Court before he resigned and took to politics
560 We have read the entire speech
It is not necessary to set out the A entire speech
The relevant portions of the said speech for the present purpose are as follows a The Supreme Court composed of the element from the elite class had their unconcealed sympathy for the haves ie the Zamindars
As a result they interpreted the word compensation  in Article 31 contrary to the spirit and the intendment of the Constitution and ruled the compensation must represent the price which a willing seller is prepared to accept from a willing buyer The entire programme of Zamindari abolition suffered a setback
The Constitution had to be amended by the 1st 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with little or no help
Ultimately this rigid reactionary and traditional outlook of property led to the abolition of property as a fundamental right He inter alia further observed b Holmes Alexander in his column entitled 9 Men of Terror Squad  made a frontal attack on the functions of the US Supreme Court
It makes an interesting reading Now can you tell what that black robed elite are going to do next
Spring more criminals abolish more protections
Throw down more ultras
Rewrite more laws
Chew more clauses out of the Constitution
May be as a former Vice President once said the American people are too dumb to understand but I would bet that the outcropping of evidence at the top in testimony before the US Senate says something about the swelling concern among the people themselves  Should we not ask how true Holmes Alexander was in the Indian context
 The Minister further stated c Twenty years of valuable time was lost in this confrontation presented by the Judiciary in introducing and implementing basic agrarian reforms for removal of poverty 561 what is the ultimate result
Meanwhile even the political will seems to have given way and the resultant effect is the improper and ineffective implementation of the land reform laws by the Executive and the Judiciary supplimenting and complementing each other
 It was further stated by him d The Maharajas and the Rajas were anachronistic in independent India
They had to be removed and yet the conservative element in the ruling party gave them privy purses
When the privy purses were abolished the Supreme Court contrary to the whole national upsurge held in favour of the Maharajas
e Madhadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India
And the bank magnates the representatives of the elitist culture of this country ably supported by industrialists the beneficiaries of independence got higher compensation by the intervention of the Supreme Court in Cooper s case
Antisocial elements ie FERA violators bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court
 Shri PN Duda brought the newspaper version of the said speech to our notice
He further stated that the said speech contains slander which was cast on this Court both in respect of the Judges and its working
It was alleged that Shri P Shiv Shankar has done this to malign this Court
Shri Duda further stated that he read the speech in the News Times and he had approached the learned Attorney General of India and the learned Solicitor General of India to give their consent for initiating contempt proceedings
In those circumstances the petitioner claimed that he also made the Editor and Publisher of the newspaper News Times as one of the respondents
The learned Attorney General and the learned Solicitor General have declined to deal with this prayer of the petitioner for the reasons stated in the letter which is an annexure to this petition
We shall refer to that part of the letter later
In those circumstances an application for initiation of contempt entitled Information under Section 151a and b of the Act read with Explanation 19 and Rule 3a b and c of Contempt of Supreme Court Rules 1975 in the matter of said Shri 562 PN Duda was made wherein Shri P Shiv Shankar the learned A Attorney General the learned Solicitor General and the Editor of News Times were made parties
The application having been moved before this Court on 10th February 1988 we directed issue of notice returnable on 15th March 1988 to the respondents namely Shri P Shiv Shankar Shri K Parasaran Shri Milon Banerji and Shri Ramji Rao Editor News Times confined only to the question to consider whether action if any need be taken on the said petition of the petitioner
We requested the First Additional Solicitor General Shri B Datta to appear as Amicus Curiae to assist the Court
On 11th February 1988 Shri Duda mentioned the matter and this Court clarified that the respondents need not appear in the first instance in person
In the meantime pursuant to the notice Shri P Shiv Shankar has filed an affidavit on 8th March 1988 in which he has stated that he had delivered a speech on the Silver Jubilee Celebration of the Bar Council of Andhra Pradesh at Hyderabad where the audience consisted of Judges and lawyers
On that occasion he had made a speech on the subject of accountability of the Legislature the Executive and the Judiciary
He further stated that during the speech he made comments on the accountability of the three organs and theoretical implications thereof
The Minister has further reiterated with utmost emphasis at his command that he intended no disrespect to any of the institutions or its functionaries much less this Hon ble Court
He further stated that he has high regard for this Hon ble Court
He further stated that the contempt petition is not maintainable in law without the consent of the Attorney General or the Solicitor General and it was liable to be dismissed
In the Meantime an application has been filed by Shri RN Trivedi who is an advocate of 25 years  standing at the Bar in which he has claimed the right to be impleaded as a party
He has stated in the petition that the learned Attorney General and the Solicitor General should not have been made parties to the contempt petition and the alleged non exercise of jurisdiction by the Attorney General and the Solicitor General did not constitute contempt within the meaning of section 2c of the Act
The remedy if any in respect of the alleged non exercise of jurisdiction and power would lie somewhere else according to Shri Trivedi
Shri B Datta at our request appeared as Amicus Curiae and made his submissions
We express our gratitude to him
Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor General as contended by Dr Chitale on behalf of Shri Shiv Shanker and the question whether the Attorney General and the Solicitor 563 General could be made parties to the contempt application and whether their action or inaction was justiciable at all in any proceeding and if so in what proceedings it is necessary to decide the basic question whether the speech made by Shri P Shiv Shankar and published throughout the length and breadth of the country amounted to contempt of this Court or in other words whether the speech has the effect of bringing this Court into disrepute
Justice is not a cloistered virtue
she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men said Lord Atkin in Ambard vs Attorney General for Trinidad and Tobago at 335
Administration of justice and Judges are open to public criticism and public scrutiny
Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office that is to defend and uphold the Constitution and the laws without fear and favour
This the Judges must do in the light given to them to determine what is right
And again as has been said in the famous speech of Abraham Lincoln in 1865 With malice towards none with charity for all we must strive to do the right in the light given to us to determine that right
 Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented
The Contempt of Court proceedings arise out of that attempt
Judgment can be criticised the motives of the Judges need not be attributed it brings the administration of justice into deep disrepute
Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains
In the free market place of ideas criticisms about the judicial system or Judges should be welcomed so long as such criticisms do not impair or hamper the administration of justice
This is how Courts should approach the powers vested in them as Judges to punish a person for an alleged contempt be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer
In EM Sankaran Namboodiripad vs T Narayanan Nambiar 1971 I SCR 697 this Court had to deal with this jurisdiction in respect of Mr Namboodiripad who at the relevant time was the Chief Minister of Kerala
He had held a press conference in November 1976 and made various critical remarks relating to the judiciary which inter alia was described by him as an instrument of oppression and the Judges as dominated by class hatred class prejudices instinctively favouring the rich against the poor
He also stated that as part of 564 the ruling classes the judiciary works against workers peasants and A other sections of the working classes and the law and the system of judiciary essentially served the exploiting classes emphasis supplied It was found that these remarks were reported in the newspapers and thereafter proceedings commenced in the High Court of Kerala
The appellant Shri Namboodiripad was called upon to show cause why he should not be committed for contempt
In his affidavit the appellant stated that the reports were substantially correct though incomplete in some respects
The appellant further claimed that his observations did no more than give expression to the Marxist Philosophy and what was contained in the programme of the Communist Party of India
By a majority judgment of the High Court the appellant was convicted for contempt of court and fined Rs 1000 or simple imprisonment for one month
He moved this Court by an appeal
He contended that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression under Article 191a of the Constitution and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people
He sought to justify the remarks as an exposition of his ideology which he claimed was based on the teachigs of Marx and Engels and on this ground claimed protection of the first clause of Article 191 of the Constitution
The conviction of the appellant was upheld by this Court
It was observed by Hidayatullah CJ speaking for the Court that the law punishes not only acts which do not in fact interfere with the courts and administration of justice but also those which have that tendency that is to say are likely to produce a particular result
Judged from the angle of courts and administration of justice there was no doubt that the appellant was guilty of contempt of court
The Chief Justice observed whether the appellant misunderstood the teachings of Marx and Engels or deliberately distorted them was not to mush purpose
The likely effect of his words must be seen and they clearly had the effect of lowering the prestige of judges and courts in the eyes of the people
emphasis supplied That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but could not serve as a justification
This Court further held that the appellant had misguided himself about the true teachings of Marx Engles and Lenin
According to the Chief Justice he had misunderstood the attack by them on State and the laws as involving an attack on the Judiciary
No doubt the courts while upholding the laws and enforcing them do give support to the State but they do not do so out of any impure motives
To charge the Judiciary as an instrument of oppression the Judges as guided and dominated by class hatred class 565 interests and class prejudices instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the Judiciary
It A was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions
According to the Chief Justice it weakened the authority of law and law courts emphasis supplied
It was further held that while the spirit underlying Article 191a must have due play the Court could not overlook the provisions of the second clause of that Article
Its provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves
Although Article 191a guaranteed complete freedom of speech and expression it also made an exception in respect of contempt of court
While the right is essential to a free society the Constitution had itself imposed restrictions in relation to contempt of court and it could not therefore be said that the right abolished the law of contempt or that attack upon judges and courts would be condoned
We are not concerned here whether the appellant in that case properly understood the communist manifesto or the views of the Marx Engles and Lenin
While respectfully accepting the ratio and the observations of the learned Chief Justice made in that decision we must recognise that times and clime have changed in the last two decades
There have been tremendous erosions of many values
In this connection it is interesting to note that little over sixty years ago on 1st March 1928 Justice Holmes wrote to Prof Harold Laski  
You amaze me by saying if I understand you that criticism of an opinion or judgment after it has been rendered may make a man liable for contempt
I thought that notion was left for some of our middle western states
I must try to get the book and the decision   Holmes Laski Letters Vol
I In the instant case we have examined the entire speech
In the speech Shri P Shiv Shankar has examined the class composition of the Supreme Court
His view was that the class composition of any instrument indicates its pre disposition its prejudices
This is inevitable
Justice Holmes in his dissenting opinion in Joseph Lochner vs People of the State of New York 49 Lawyers  Edition 195 198 US 1904 had observed General propositions do not decide concrete cases
The decision will depend on a judgment or intuition more subtle than any articulate major premise
 That intuition more subtle than major premise is the pride and the prejudice of a human instrument of a Judge through which objectively the Judge seeks to administer justice according to law
So therefore in a study of accountability if class 566 composition of the people manning the institution is analysed we forewarn ourselves of certain inclination it cannot be said that an expression or view or propagation of that view hampers the dignity of the Courts or impairs the administration of justice
The question of contempt of court by newspaper article criticising the Judges of the Court came up for consideration in the case of Re Shri section Mulgaokar  In order to appreciate the controversy in this case it has to be stated that the issue dated 13th December 1977 of the Indian Express published a news item that the High Courts had reacted very strongly to the suggestion of introducing a code of judicial ethics and propriety and that so adverse has been the criticism that the Supreme Court Judges some of whom had prepared the draft code have disowned it
In its issue dated December 21 1977 an article entitled behaving like a Judge was published which inter alia stated that the Supreme Court of India was packed by Mrs Indira Gandhi with pliant and submissive judges except for a few
It was further stated that the suggestion that a code of ethics should be formulated by Judges themselves was so utterly inimical to the independence of the judiciary violative of the Constitutional safeguards in that respect and offensive to the self respect of the Judges as to make one wonder how it was conceived in the first place
A notice had been issued to the Editor in Chief of the Newspaper to showcause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items It was observed by Chief Justice Beg in that decision that national interest required that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics
This should be apart of national ethics
The comments about Judges of the Supreme Court suggesting that they lack moral courage to the extent of having disowned what they had done or in other words to the extent of uttering what was untrue at least verge on contempt
None could say that such suggestions would not make Judges of this Court look ridiculous or even unworthy in the estimation of the public of the very high office they hold if they could so easily disown what they had done after having really done it
It was reiterated that the judiciary can not be immune from criticism
But when that criticism was based on obvious distortion or gross mis statement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it it could not be ignored
A decision on the 567 question whether the discretion to take action for Contempt of Court should be exercised must depend on the totality of facts and circumstances of the case
The Chief Justice agreed with the other two learned Judges in that decision that in those facts the proceedings should be dropped
Krishna Iyer J in his judgment observed that the Court should act with seriousness and severity where justice is jeopardised by a gross andor unfounded attack on the Judges where the attack was calculated to obstruct or destroy the judicial process
The Court must harmonise the constitutional values of free criticism and the need for a fearless curial process and its presiding functionary the judge
To criticise a judge fairly albeit fiercely is no crime but a necessary right
Where freedom of expression subserves public interest in reasonable measure public justice cannot gag it or manacle it
The Court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community s confidence in that great process
The former is not contempt but latter is although overlapping spaces abound
The fourth functional canon is that the Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the court including the highest court
The fifth normative guideline for the Judges to observe is not to be hypersensitive even where distortions and criticisms overstep the limits but to deflate vulgar denunciation by dignified bearing and the sixth consideration is that if the Court considers the attack on the judge or judges scurrilous offensive intimidatory or malicious beyond condonable limits the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its sources and stream
It is well to remember the observations of Justice Brennan of US Supreme Court though made in the context of law of libel in New York Times Company vs LB Sullivan  that it is a prized privilege to speak one s mind although not always with perfect good taste on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion
Lord Denning in Regina vs Commissioner of Police of the Metropolis Ex parte Blackburn observed as follows
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity
That must rest on surer foundations
Nor will we use it to suppress those who speak against us
We do not fear criticism nor do we resent 568 it
For there is something far more important at stake
It is no less than freedom of speech itself
It is the right of every man in Parliament or out of it in the Press or over the broadcast to make fair comment even outspoken comment on matters of public interest
Those who comment can deal faithfully with all that is done in a court of justice
They can say that we are mistaken and our decisions erroneous whether they are subject to appeal or not
All we would ask is that those who criticise us will remember that from the nature of our office we cannot reply to their criticisms
We cannot enter into public con troversy
Still less into political controversy
We must rely on our conduct itself to be its own vindication
Exposed as we are to the winds of criticism nothing which is said by this person or that nothing which is written by this pen or that will deter us from doing what we believe is right nor I would add from saying what the occasion requires provided that it is pertinent to the matter in hand
Silence is not an option when things are ill done The aforesaid observations were made in respect of an article written by Mr Quintin Hogg in Punch as later Lord Hailsham then was more or less in a critical language as the Hon ble Minister s speech in the instant case
Gajendragadkar CJ in Special Reference No 1 of 1964  observed as follows We ought never to forget that the power to punish for contempt large as it is must always be exercised cautiously wisely and with circumspection
Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court but may sometimes affect it adversely
Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments the fearlessness fairness and objectivity of their approach and by the restraint dignity and decorum which they observe in their judicial conduct
 It has been well said that if judges decay the contempt power 569 will not save them and so the other side of the coin is that Judges like Caesar s wife must be above suspicion per Krishna Iyer J in Shri Baradakanta Mishra vs The Registrar of Orissa High Court and another  It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy
Many today suffer from remedyless evils which courts of justice are incompetent to deal with
Justice cries in silence for long far too long
The procedural wrangle is eroding the faith in our justice system
It is a criticism which the Judges and lawyers must make about themselves
We must turn the search light inward
At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process if it is seriously done
This question was examined in Rama Dayal Markarha vs State of Madhya Pradesh  where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt
In fact such fair and reasonable criticism must be encouraged because after all no one much less Judges can claim infallibility
Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts
But when it is said that the Judges had a pre disposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused or has a wayward bend of mind is attributing motives lack of dispassionate and objective approach and analysis and pre judging of the issues which would bring administration of justice into ridicule
Criticism of the Judges would attract greater attention than others and such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into a ridicule or hampers administration of justice
After all it cannot be denied that pre disposition or subtle prejudice or unconscious prejudice or what in Indian language is called Sanskar are inarticulate major premises in decision making process
That element in the decision making process cannot be denied it should be taken note of
It has to be borne in mind as has been said by Benjamin N Cardozo in The Nature of the Judicial Process at pages 16 17 that the Judge as the interpreter for the community of its sense of law and order must supply omissions correct uncertainties and harmonize results with justice through a method of free decision
Courts are to 570 search for light among the social elements of every kind that are the A living force behind the facts they deal with
The power thus put in their hands is great and subject like all power to abuse but we are not to flinch from granting it
In the long run there is not guaranty of justice said Ehrlich except the personality of the judge
Justice Benjamin N Cardozo further says at page 112 of the said book that judicial process comes then to this and little more logic history custom and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of the law
Judges try to see things as objectively as they please
Nonetheless we can never see them with any eyes except our own
Therefore the perception of a judge is important and relevant
Judicial process is not only a path of discovery but a path of creation Cardozo the Nature of the Judicial Process
President Roosevelt in his message to the Congress of the United States on December 8 1908 stated thus The chief lawmakers in our country may be and often are the judges because they are the final seat of authority
Every time they interpret contract property vested rights due process of law liberty they necessarily enact into law parts of a system of social philosophy and as such interpretation is fundamental they give direction to all lawmaking
The decisions of the courts on economic and social questions depend upon their economic and social philosophy and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy which was itself the product of primitive economic conditions Justice Benjamin N Cardozo says that he remembers when the statement made aroused a storm of criticism
Cardozo The Nature of the Judicial Process pages 171 173
It betrayed ignorance he said of the nature of the judicial process
Justice Benjamin N Cardozo tells us that the business of the judge was to discover objective truth
His own little individuality his tiny stock of scattered and unco ordinated philosophies these with all his weaknesses and unconscious prejudices were to be laid aside and forgotten
According to Cardozo the truth is however that all these inward questionings are born of the hope and desire to transcend the limitations which hedge our human nature
According to Cardozo Roosevelt who knew men 571 had no illusions on this score
He was not positing an ideal
He was not fixing a goal
He was measuring the powers and the endurance of those A by whom the race was to be run
It is well to remember the words of Justice Cardozo where he says as follows I have no quarrel therefore with the doctrine that the judges ought to be in sympathy with the spirit of their times
Alas assent to such a generality does not carry us far upon the road to truth
In every court there are likely to be as many estimates of the Zeitgeist  as there are judges on its bench
Of the power of favour or prejudice in any sordid or vulgar or evil sense I have found no trace not even the faintest among the judges whom I have known
But every day there is borne in on me a new conviction of the inescap able relation between the truth without us and the truth within
The spirit of the age as it is revealed to each of us is too often only the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us a place
No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties
our beliefs and opinions says James Harvey Robinson  like our standards of conduct come to us insensibly as products of our companionship with our fellow men not as results of our personal experience and the inferences we individually make from our own observations
We are constantly misled by our extraordinary faculty of rationalizing  that is of devising plausible arguments for accepting what is imposed upon us by the traditions of the group to which we belong
We are adjectly credulous by nature and instinctively accept the verdicts of the group
We are suggestible not merely when under the spell of an excited mob or a fervent revival but we are ever and always listening to the still small voice of the herd and are ever ready to defend and justify its instructions and warnings and accept them as the mature results of our own reasoning
 This was written not of judges specially but of men and women of all classes
The training of the judge if coupled with what is styled the judicial temperament will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions
It will help to broaden the group to which his subconscious loyalties are due
Never will these loyalties be utterly extinguished 572 while human nature is what it is
We may wonder sometimes how from the play of all these forces of individualism there can come anything coherent anything but chaos and the void
Those are the moments in which we exaggerate the elements of difference
In the end there emerges some thing which has a composite shape and truth and order
It has been said that History like mathematics is obliged to assume that eccentricities more or less balance each other so that something remains constant at last Henry Adams The Degradation of the Democratic Dogma pages 291 and 292
The like is true of the work of courts
The eccentricities of judges balance one another
One judge looks at problems from the point of view of history another from that of philosophy another from that of social utility one is a formalist another a latitudinarian one is timorous of change another dissatisfied with the present out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements
The same thing is true of the work of juries
I do not mean to suggest that the product in either case does not betray the flaws inherent in its origin
The flaws are there as in every human institution
Because they are not only there but visible we have faith that they will be corrected
There is no assurance that the rule of the majority will be the expression of perfect reason when embodied in constitution or in statute
We ought not to expect more of it when embodied in the judgments of the courts
The tide rises and falls but the sands of error crumble
The work of a judge is in one sense enduring and in another sense ephemeral
What is good in it endures
What is erroneous is pretty sure to perish
The good remains the foundation on which new structures will be built
The bad will be rejected and cast off in the laboratory of the years
Little by little the old doctrine is undermined
Often the encroachments are so gradual that their significance is at first obscured
Finally we discover that the contour of the landscape has been changed that the old maps must be cast aside and the ground charted anew
The process with all its silent yet inevitable power has been described by Mr Henderson with singular felicity When an adherent of a systematic faith is brought continuously in touch with 573 influences and exposed to desires inconsistent with that faith a process of unconscious cerebration may take place by which a growing store of hostile mental inclinations may accumulate strongly motivating action and decision but seldom emerging clearly into consciousness
In the meantime the formulas of the old faith are retained and repeated by force of habit until one day the realization comes that conduct and sympathies and fundamental desires have become so inconsistent with the logical framework that it must be discarded
Then begins the task of building up and rationalizing a new faith Cardozo The Nature of the Judicial Process pages 174 179 If any one draws attention to this danger and aspect and measures an institution by the class content he does not minimise its dignity or denigrate its authority
Looked in that perspective though at places little intemperate the statement of the Minister in this case cannot be said to amount to interference with the administration of justice and as to amount to contempt of court
The Minister s statement does not interfere with the administration of justice
Administration of justice in this country stands on surer foundation
JAG Griffith in The Politics of the Judiciary Part I has two interesting passages on the judiciary which are worth quoting There is one matter which I ought to mention
All the judges without exception are members of the Athenaeum and I presume you will wish to be a member
If so may I have the pleasure of proposing you There is a meeting of the Committee early next week The most politically influential of the judges however has been the Master of the Rolls Lord Denning 
With his own modest roots he dismisses the attacks on a classbased judiciary The youngsters believe that we come from a narrow background it s all nonsense they get it from that man Griffith
 Griffith in his book The Politics of the Judiciary at page 234 has tried to incite the concept of the class interest of the judges
Judges he says are concerned to preserve and protect the existing order
This does not mean that no judges are capable of moving with the times of adjusting to changed circumstances
But according to him their func 574 tion in our society is to do so belatedly
He further says thus Law and order the established distribution of power both public and private the conventional and agreed view amongst those who exercise political and economic power the fears and prejudices of the middle and upper classes these are the forces which the judges are expected to up hold and do uphold
 No contempt proceedings were taken in England in respect of these and one would like to think rightly
Faith in the administration of justice is not shaken by such criticism
Reference may also be made to the decision of this Court in Conscientious Group vs Mohammed Yunus and others In that case there was publication in the Indian Express which carried the news that Mr Mohammed Yunus Chairman Trade Fair Authority of India said that the Supreme Court Judge who held that the singing of the National Anthem was not compulsory had no right to be called either an Indian or a Judge
The Conscientious Group approached this Court for contempt alleging that the conduct of Mr Mohammed Yunus in making certain adverse comments about the Judges who delivered the judgment of this Court in Civil Appeal No 860 of 1986 National Anthem case  constituted criminal contempt and it should be so dealt with
Notice on this petition was issued
When the matter subsequently came up before a Bench of three Judges consisting of Bhagwati CJ Oza and KN Singh JJ the contemnor filed a reply stating that the petition was not maintainable inasmuch as the petitioner had not obtained the consent in writing of the Attorney General as required under section 15 of the Act
It appears that the petitioner was directed by the Division Bench to move the Attorney General for his consent and the petition was adjourned
The Attorney General on being moved by the petitioner for the grant of consent replied to the petitioner stating that since he was himself a party in his capacity as Attorney General in the National Anthem case it was not appropriate for him to deal with the petitioner s application
When the case later on came up before the same three Judges Bench on December 12 1986 the learned Judges directed the withdrawal of the petition with liberty to the petitioner to refile the application after obtaining consent of the Attorney General as soon as the National Anthem case was over
It was further observed by this Court that everyone is entitled to criticise the judgment of the court but no one should attack the Judges who delivered the judgment 575 as that denigrates the judicial institution and in the long term impairs the democratic process
Subsequently the petitioner in that case filed Criminal Miscellaneous Petition No 5244 of 1986 praying for recalling the aforesaid order on the ground that at the time when he applied to the court for withdrawal of the petition he was not aware that under Rule 3c of the Rules framed by this Court the contempt petition could be maintained with the consent of the Solicitor General if the Attorney General for any reason was not in a position to give consent to the filing of the petition
He was so allowed
Thereafter the petitioner approached the Solicitor General
But the Solicitor General declined to give the consent in public interest
He gave certain reasons in support of his conclusion
The Court in the aforesaid decision by scrutinising reasons was of the opinion that the reasons stated by the Solicitor General refusing to grant consent could not be said to be irrelevant and the petition was dismissed
In dismissing this application this Court observed at page 93 of the report No doubt by the last of the sentence of the said order the Bench has also observed that the petitioner will not be without remedy if the Solicitor General refuses his consent on any irrelevant ground  but this only means that such a refusal can be called in question before this Court by the petitioner by appropriate process
In other words the effect of the decision is that the reasons given by the Attorney General or the Solicitor General in giving or not giving his consent were justiciable
As we have mentioned before the speech of the Minister has to be read in its entirety
In the speech as we have set out hereinbefore it appears that Shri P Shiv Shankar was making a study of the attitude of this Court
In the portion set out hereinbefore it was stated that the Supreme Court was composed of the element from the elite class
Whether it is factually correct or not is another matter
In our public life where the champions of the down trodden and the politicians are mostly from the so called elite class if the class composition is analysed it may reveal interesting factors as to whether elite class is dominant as the champions of the oppressed or of social legislations and the same is the position in the judiciary
But the Minister went on to say that because the Judges had their unconcealed sympathy for the haves  interpreted the expression compensation  in the manner they did
The expression unconcealed  is unfortunate
But this is also an expression of opinion about an institutional pattern
Then the Minister went on to say that because of this the word compensation  in Article 31 was interpreted contrary to the spirit and the intendment of the 576 Constitution
The Constitution therefore had to be amended by the 1st 14th and 17th Amendments to remove this oligarchic  approach of the Supreme Court with little or no help
The inter action of the decisions of this Court and the Constitutional amendments have been viewed by the Minister in his speech but that is nothing new
This by itself does not affect the administration of justice
On the other hand such a study perhaps is important for the understanding of the evolution of the constitutional development
The next portion to which reference may be made where the speaker has referred to Holmes Alexander in his column entitled 9 Men of Terror Squad  making a frontal attack on the functions of the US Supreme Court
There was a comparison after making the quotation as we have set out hereinbefore one should ask the question how true Holmes Alexander was in the Indian context
 This is also a poser on the performance of the Supreme Court
According to the speaker twenty years of valuable time was lost in this confrontation presented by the judiciary in introducing and implementing basic agrarian reforms for removal of poverty what is the ultimate result
The nation did not exhibit the political will to implement the land reform laws
The removal of the Maharajas and Rajas and privy purses were criticised because of the view taken by this Court which according to the speaker was contrary to the whole national upsurge
This is a study in the historical perspective
Then he made a reference to the Keshavananda Bharati s and Golaknath s cases and observed that a representative of the elitist culture of this country ably supported by industrialists and beneficiaries of independence got higher compensation by the intervention of the Supreme Court in Cooper s case
This is also a criticism of the judgment in RC Cooper s case
Whether that is right or wrong is another matter but criticism of judgments is permissible in a free society
There is however one paragraph which appears to us to be rather intemperate and that is to the following effect Anti social elements ie FERA violators bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court
This of course if true is a criticism of the laws
The Supreme Court as it is bound to do has implemented the laws and in implementing the laws it is a tribute to the Supreme Court that it has not discriminated between persons and persons
Criminals are entitled to be judged in accordance with law
If anti social elements and criminals have benefited by decisions of the Supreme Court the fault rests with the laws and the loopholes in the legislation
The Courts are not deterred by such criticisms
577 Bearing in mind the trend in the law of contempt as noticed before as well as some of the decisions noticed by Krishna Iyer J m section Mulgaokar s case supra the speech of the Minister read in its proper perspective did not bring the administration of justice into disrepute or impair administration of justice
In some portions of the speech the language used could have been avoided by the Minister having the background of being a former Judge of the High Court
The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly
With these observations it must be held that there was no imminent danger of interference with the administration of justice nor of bringing a institution into disrepute
In that view it must be held that the Minister was not guilty of contempt of this Court
The view we have taken on this aspect of the matter would have been sufficient to dispose of this petition
But another question of law of some importance has arisen in this matter
Under the Act in case of criminal contempt other than a contempt referred to in section 14 which is not the facts of this case namely a contempt in the fact of this Court or a High Court this Court or the High Court may take action either on its own motion or on a motion made by the Advocate General which in relation to this Court means the Attorney General or the Solicitor General or any other person with the consent of the Attorney General in terms of section 15 of the Act
Therefore cognizance for criminal contempt could be taken by the Court by three methods namely on its own motion or on the motion of the Attorney General or the Solicitor General or on motion by any other person with the consent of the Attorney General or the Solicitor General
Therefore the only course open to a citizen for initiating proceedings for contempt where the Court does not take cognizance on its motion or where the Attorney General or the Solicitor General does not take action is to move for consent in writing of the Attorney General or the Solicitor General
The question is does it cast a duty upon the Attorney General or the Solicitor General to consider application for grant of such consent and whether the granting or non granting of such consent is justiciable by the Court and if so whether the question of non granting can be brought up in a rolled application moved by a person to bring it to the notice of the Court to take action suo motu and at the same time to consider whether in the same proceeding the action of the Attorney General or the Solicitor General in granting or not granting consent can be challenged or it must be always by an independent proceeding
The consent certainly is linked up with contempt proceedings
Indeed Mohammed Yunus  case supra was 578 dismissed because no consent was obtained
In the instant case the Minister has taken the plea that consideration of this case cannot be taken because there is no consent of the law officers
Does it or does it not tend to interfere with due course of judicial proceedings in terms of clause ii of section 3c of the Act If so is it justiciable in these proceedings Attorney General and Solicitor General of India in respect of this Court occupy positions of great importance and relevance
Attorney General though unlike England is not a member of the Cabinet yet is a friend of the Court and in some respects acts as the friend philosopher and guide of the Court
See article 76 of the Constitution
Yet the Act vests him with certain discretions
All statutory discretions are justiciable in a society governed by the rule of law
one must remember the remarks of Thomas Fuller Be you ever so high the law is above you and this Court is the finder and interpreter of that law in cases of this nature with the assistance of Attorney General and in his absence or inability the Solicitor General
It is well to remember what Burke said in the House of Commons in 1772 in connection with the motion for select committee for enquiry into the affairs of the East India Company and Clive
He said that when discretionary power is lodged in the hands of any man or class of men experience proves that it will always be abused
Where no laws exist men must be arbitrary and very necessary acts of government will often be in such cases represented by the interested and malevolent as instances of wanton oppression Clive of India Nirad C Chaudhry page 381
Times have changed here the discretion is vested on a very high dignitary and a friend of the Court yet it is subject to scrutiny
On this aspect it is necessary to refer to the letter dated 3rd December 1987 which Shri PN Duda petitioner herein wrote to the Attorney General wherein he requested for grant of consent for initiating contempt proceedings against Shri P Shiv Shankar and others namely the Editor Hindustan Times and the Printer and Publisher Hindustan Times
After setting out the contempt as alleged by him in that letter he stated inter alia as follows I am more aware than any that you may feel embarrassed in giving consent for prosecution of Shri Shiv Shankar who happens to be the Minister who effectively hires and fires law officers and for all purposes during whose pleasure they hold their offices
Since emergency period we have seen the modalities of this hiring and firing which causes 579 apprehensions in my mind about the possible outcome of this request
I however thought it fit to make this request reminding you of your duties as the ex officio leader of the bar to give your consent for prosecution of the persons named
The other two are being named because the one is the Editor and the other the Printer and Publisher of the paper viz the Hindustan Times which published the report
I will expect you to take a decision in this matter within a week of the receipt of this request
If I do not hear from you in either way I will presume that you have declined the consent
In that event I will consider myself free to move the court for taking action on its own motion under section 151a of the seeking my participation as an amicus curiae
 A copy of the said letter was sent to the Solicitor General of India with request to treat it as a request made to him independently also under section 151b of the Act read with Rule 33 of the Supreme Court Contempt of Court Rules 1975
He wrote another letter on 8th December 1987 in which he reminded the Attorney General of certain stand taken by him in respect of Shri Charanjit Lal Sahu
The relevant portion of the said letter reads as follows I may invite your attention to the remarkable stand you took when a PIL matter initiated by Shri Charanjit Lal Sahu came before a bench of the Supreme Court and how concerned you felt in seeing Shri Sahu being prosecuted for having made some statements about the Court which were more foolish than intemperate for maintaining the dignity of the court
No one would have taken Mr Shau s statement seriously nor was it addressed to a large audience
Shri Shiv Shankar s diatribe against the Supreme Court is more intemperate is addressed to a very nation wide large audience and the maker of the statement is a man of status whom no one will ignore
I think you will keep this aspect in mind in considering my request
 A copy of the said letter was also forwarded to the Solicitor General of India
In reply the Attorney General wrote a letter on 14th December 1987 in which he stated inter alia as follows 580 You suggest that we cannot discharge our duties impartially
In other words you have sought to undermine the credibility of any decision we may take
These two deeply hurtful allegations are calculated to ensure that in which ever way we exercise our function justice will not be seen to be done
Therefore we feel that in the circumstances no useful purpose will be served in exercising our function at all
This letter has the approval of the Solicitor General to whom a copy of your letter was sent
 Shri Duda wrote another letter on 19th December 1987 both to the Attorney General and the Solicitor General in which he stated inter alia as follows Needless to point out that your letter is suggestive of your refusal to discharge your duty to accede or not to accede to my request of granting sanction and legally I am entitled to a mandamus against you from an appropriate court seeking direction against you to decide the matter one way or the other
I have thought it fit to make an alternative request to you to relieve me of the unpleasant duty of seeking relief in any other way
 After setting out the facts in the petition the petitioner inter alia stated that he had approached the learned Attorney General and the Solicitor General to look into these aspects of the matter and accord sanction
The conduct of the said respondent No 2 and respondent No 3 according to the petitioner amounted to refusal to exercise jurisdiction vested in them by law and therefore they were impleaded as parties in the present proceedings as necessary andor proper parties in order that they may get an opportunity to justifying the stand they have taken in the matter flowing from their refusal to exercise jurisdiction
Upon this notice was issued by this Court to all the respondents in the manner indicated above
Shri Gopal Subramaniam has appeared before us and filed a statement signed by the learned Attorney General and also made his oral submissions
Shri Trivedi intervener has also made his submissions
The main plank of their submissions is that the actions of the Attorney General and the Solicitor General to act were motivated because of the allegation of bias in the aforesaid letter
Reliance was 581 placed in the case of Vassiliades vs Vassiliades and another AIR 1945 PC 38 where the Judicial Committee reiterated that it was highly desirable that all proceedings should be dealt with by persons who are above any suspicion however unreasonable of being biased
It was reiterated that in any case there was no question of the petitioner being without remedy because the Court can always take action suo motu
The question therefore is whether there was a duty cast upon the Attorney General or the Solicitor General to consider the question of granting consent in terms of clause b of section 151 of the Act in an appropriate case and if in fact such consent was not granted that question could be considered by the Court
It is not a question of making the Attorney General or the Solicitor General a party to a contempt proceeding in the sense that they are liable for contempt but if the hearing of the contempt proceedings can be better proceeded by obtaining the consent of the Attorney General or the Solicitor General and the question of justifiability of giving the consent is interlinked on the analogy of Order II Rule I of the Code of Civil Procedure which has application to a civil proceeding and not to a criminal proceeding it is permissible to go into this question
Indeed in the case of Conscientious Group supra precisely this was done where an application for contempt was filed and which was revived pursuant to the previous order and the Court while doing so had reserved the right to consider on the previous occasion the question if the Solicitor General refuses to give consent improperly or on irrelevant ground the Court could consider that question
In the case of Conscientious Group supra the Court went into the reasons given by the Solicitor General declining consent
This Court in that case held on examination that such consent was properly refused
This is a complete answer to the contention that in a contempt petition the grounds for either giving consent or not giving consent or for not considering the application for consent are justiciable and that question can not be gone into in that proceeding though it must be emphasised in that proceeding that the Solicitor General was not made a party to the proceeding
In my opinion it will be more appropriate for an officer of the Court whose action is being investigated to be made a party in the proceedings otherwise it would be violative of the rule of audi alteram partem
On behalf of the learned Solicitor General Shri AK Ganguly has made elaborate submissions
It was submitted by Shri Ganguly that the procedure followed by the petitioner simultaneously seeking the consent of the Attorney General was not proper and the Solicitor General had been invoked and that was not proper and legal
It is not possible to accept this submission
It was contended that there was no doctrine of necessity applicable in this case because even if the 582 Attorney General or the Solicitor General does not give consent a party is not without a remedy and can bring this to the notice of the Court
Discretion vested in law officers of this Court to be used for a public purpose in a society governed by rule of law is justiciable
Indeed it was gone into in the case of Conscientious Group supra and it will be more appropriate that it should be gone into upon notice to the law officer concerned
It is a case where appropriate ground for refusal to act can be looked into by the Court
It cannot be said as was argued by Shri Ganguly that the refusal to grant consent decides no right and it is not reviewable
Refusal to give consent closes one channel of initiation of contempt
As mentioned hereinbefore there are three different channels namely 1 the Court taking cognizance on its own motion 2 on the motion by the Attorney General or the Solicitor General and 3 by any other person with the consent in writing of the Attorney General or the Solicitor General
In this case apparently the Attorney General and the Solicitor General have not moved on their own
The petitioner could not move in accordance with law without the consent of Attorney General and the Solicitor General though he has a right to move and the third is the court taking notice suo motu
But irrespective of that there was right granted to the citizen of the country to move a motion with the consent
In this case whether consent was to be given or not was not considered for the reasons stated by the Attorney General
Those reasons are linked up with the Court taking up the matter on its own motion
these are inter linked
In that view of the matter these are justiciable and indeed it may be instructive to consider why this practice grew up of having the consent 
This was explained in section K Sarkar vs V C Misra  where Sarkaria J speaking for the Court observed at page 339 of the report that the whole object of prescribing these procedural modes of taking cognizance under section 15 of the Act was to safeguard the valuable time of the High Court or the Supreme Court being wasted by frivolous complaints of contempt of court
Frequent use of this suo motu power on the information furnished by an incompetent petition may render these procedural safeguards provided in subsection 2 otiose
In such cases the High Court may be well advised to avail of the advice and assistance of the Advocate General before initiating proceedings
In this connection the Court referred to the observations of Sanyal Committee appointed to examine this question where it was observed In the case of criminal contempt not being contempt committed in the face of the court we are of the opinion that would lighten the burden of the court without in any way interfering with the sanctity of the administration of justice if action is taken on a motion by some other agency
Such a course of action would give 583 considerable assurance to the individual charged and the public at large
Indeed some High Courts have already made rules for the association of the Advocate General in some categories of cases at least 
 It was the practice that except where the Court feels inclined to take action suo motu parties were entitled to move only by the consent
If no justiciable reason was given in an appropriate case and such consent was refused can it be said that it would not be proper for the Court to investigate the same The question of contempt of court came up for consideration in the case of C K Daphtary and others vs O P Gupta and others In that case a petition under Article 129 of the Constitution was filed by Shri CK Daphtary and three other advocates bringing to the notice of this Court alleged contempt committed by the respondents
There this Court held that under Article 129 of the Constitution this Court had the power to punish for contempt of itself and under Article 1432 it could investigate any such contempt
This Court reiterated that the Constitution made this Court the guardian of fundamental rights
This Court further held that under the existing law of contempt of court any publication which was calculated to interfere with the due course of justice or proper administration of law would amount to contempt of court
A scurrilous attack on a judge in respect of a judgment or past conduct has in our country the inevitable effect of undermining the confidence of the public in the Judiciary and if confidence in Judiciary goes administration of justice definitely suffers
In that case a pamphlet was alleged to have contained statements amounting to contempt of the Court
As the Attorney General did not move in the matter the President of the Supreme Court Bar and the other petitioners chose to bring the matter to the notice of the Court
It was alleged that the said President and the other members of the Bar have no locus standi
This Court held that the Court could issue a notice suo motu
The President of the Supreme Court Bar and other petitioners were perfectly entitled to bring to the notice of the Court any contempt of the Court
The first respondent referred to Lord Shawcross Committee s recommendation in UK that proceedings should be instituted only if the Attorney General in his discretion considers them necessary
 This was only a recommendation made in the light of circumstances prevailing in England
But that is not the law in India this Court reiterated
It has to be borne that decision was rendered on 19th March 1971 and the present Act in India was passed on 24th December 1971
Therefore that decision cannot be of any assistance
We have noticed Sanyal Committee s recommendations in India as to why the Attorney General should be associated with it and 584 thereafter in UK there was report of Phillimore Committee in 1974
In India the reason for having the consent of the Attorney General was examined and explained by Sanyal Committee Report as noticed before
Our attention was drawn by Shri Ganguly to a decision of the Allahabad High Court in GN Verma vs Hargovind Dayal and others AIR 1975 Allahabad 52 where the Division Bench reiterated that Rules which provide for the manner in which proceedings for Contempt of Court should be taken continue to apply even after the enactment of the 
Therefore cognizance could be taken suo motu and information contained in the application by a private individual could be utilised
As we have mentioned hereinbefore indubitably cognizance could be taken suo motu by the Court but members of the public have also the right to move the Court
That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General and if that consent is withheld without reasons or L without consideration of that right granted to any other person under section 15 of the Act that could be investigated on an application made to the Court
It was contended that neither the Attorney General nor the Solicitor General were proper or necessary parties
Reliance was placed on B K Kar vs The Chief Justice and his Companion Judges of the Orissa High Court and others  In that case under an order passed by the appellant a Magistrate one was put in possession of some property on October 14 1955
In revision the order was set aside by the High Court on August 27 1957 and the opposite party S applied on November 20 1957 to the appellant for redelivery of possession
applied to the High Court for a review of its previous order and on November 25 1957 the application was admitted and an interim stay was granted of the proceedings before the appellant
A telegram addressed to a pleader not the counsel for G was filed along with the application
The appellant refused to act on this application and telegram and on November 27 1957 he allowed the application of S for restitution
On November 28 1957 a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued
The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27 when the High Court had stayed the proceedings
The appellant appealed to this Court and impleaded the Chief Justice and Judges of the High Court as respondents
This Court held that the appellant was 585 not guilty of contempt of court
It further held that in a contempt matter the Chief Justice and Judges of the High Court should not be A made parties and the title of such a proceeding should be In re   the alleged contemnor
Mudholkar J speaking for the Court observed at page 321 of the report that the decision of Judges given in a contempt matter is like any other decision of those Judges that is in matters which come up before them by way of suit petition appeal or reference
Since that was the real position this Court observed that there was no warrant for the practice which was in vogue in India there and which had been in vogue for over a century of making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter
The said observations were sought to be relied in aid of the proposition that where the decision of the Attorney General or the Solicitor General was involved they were not necessary or proper parties
Reliance on this decision for this purpose is entirely misconceived
Where an appeal comes to this Court which is a judicial decision the Judges who rendered the decision are not necessary parties
There is no lis between a suitor and a judge in a judicial adjudication
But the position is entirely different where there is suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act
In respect of justiciability of that act of the official there is a lis and if that lis is inter linked with the proceeding for contempt there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently
As mentioned hereinbefore in the case of SC Sarkar vs VC Misra supra this Court had observed that it may well be advices to avail of the advised and assistance of the Advocate General before initiating proceedings
Shri Ganguly appearing for the Solicitor General sought to urge before us that advice and assistance could not be compelled by a suitor
This cannot be agreed to
The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General
If such right is not considered on relevant materials then that action is justiciable in an appropriate proceeding for contempt
Reference may be made to the case of Attorney General vs Times Newspapers Ltd  In that case a drug company began to make and sell in the United Kingdom a sedative which contained the drug thalidomide
Lord Morris observed in that case that the purpose and existence of courts of law is to preserve freedom 586 within the law for all well disposed members of the community and anything which hampers the administration of law should be prevented but it does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress which was a matter of public sympathy and concern
Dealing with this aspect Lord Cross of Chelsea has observed that contempt of court  means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court Justice  he said is an ambiguous word
When we speak of the administration of justice we mean the administration of the law but often the answer which the law gives to some problem is regarded by many people as unjust
Lord Cross further observed that there must be no prejudging of the issues in a case is one thing
To say that no one must in any circumstances exert any pressure on a party to litigation to induce him to act in relation to the litigation in a way in which he would otherwise not choose to act is another and a very different thing
Lord Cross at page 87 of the report observed as follows In conclusion I would say that I disagree with the views expressed by Lord Denning MR and Phillimore LJ as to the role  of the Attorney General in cases of alleged contempt of court
If he takes them up he does not do so as a Minister of the Crown putting the authority of the Crown behind the complaint  but as amicus curiae  bringing to the notice of the court some matter of which he considers that the court shall be informed in the interests of the administration of justice
It is I think most desirable that in civil as well as in criminal cases anyone who thinks that a criminal contempt of court has been or is about to be committed should if possible place the facts before the Attorney General for him to consider whether or not those facts appear to disclose a contempt of court of sufficient gravity to warrant his bringing the matter to the notice of the court
Of course in some cases it may be essential if an application is to be made at all for it to be made promptly and there may be no time for the person affected by the contempt  to put the  facts before the attorney before moving himself
Again the fact that the attorney declines to take up the case will not prevent the complainant from seeking to persuade the court 587 that notwithstanding the refusal of the attorney to act the matter complained of does in fact constitute a contempt of which the court should take notice
Yet again of course there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it
In such cases if the facts come to the knowledge of the attorney from some other source he will naturally himself bring the matter to the attention of the court
Lord Cross has noticed in his speech that if the Attorney General declines to take up the case it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act the matter complained of does in fact constitute a contempt of which the Court should take notice
But that does not derogate the rights of the individual to move the Court
See the observations of Lord Reid
In Indian Express Newspapers Bombay Pvt Ltd and Ors etc
vs Union of India and others    the observations of the aforesaid decision in Thalidomide case were relied upon
Reliance was also placed on the observations of the House of Lords in Gouriot and others vs HM Attorney General 1978 Appeal Cases 435
There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in is a matter entirely beyond the jurisdiction of that or any other Court
It is a question which the law has made to reside exclusively in the Attorney General
The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet vs Union of Post office Workers 19781 Appeal Cases 435 where the House of Lords could find no legal basis for the lower courts  attempt to outflank the Attorney General s refusal to grant his fiat to Mr Gouriet
In the Court of Appeal all the three Judges Denning MR Lawton and Ormrod LJ upheld the plaintiff s claim for declaration and interim injunction even in the absence of fiat by the Attorney General
The statutory provisions were entirely different
It may be in the context that the Attorney General had to move in his discretion which is not justiciable
But in our opinion it is justiciable
English decisions are of persuasive value and we would prefer to rest out decision on the observations of Lord Denning in Gouriet vs Union of Post office Workers  Ors at 752 to 763 though made in connection with the Attorney General s discretion in 588 giving consent in instituting a suit for injunction by a member of the public
In UK the position of Attorney General as a member of the Cabinet is different
There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report
See also the observations of Sikri J as the Chief Justice then was in CK Daphtary  Ors
supra at page 109 of the report
Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao vs Murtza Mutjahdi 1974 1 Andhra Law Times 170
We are unable to accept the ratio stated in view of the terms of section 15 of the Act
Our attention was also drawn to the case of N Venkataramanappa vs DK Naikar AIR 1978 Karnataka 57
It is also not possible to accept the position that under no circumstances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into
Having considered the peculiar facts and circumstances of this case and the allegation of bias which were made against the Attorney General and the Solicitor General it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court
In the aforesaid view of the matter this petition fails and it is accordingly dismissed and the application of Shri Trivedi is accordingly disposed of
RANGANATHAN J I agree with the conclusion of my learned brother that no case has been made but for initiating contempt proceedings against respondent No 1
The principles applicable to and the case law on the subject have been discussed by him at length and I do not have much to add
The impugned comments were made by respondent No 1 in the course of his key note address at a seminar on Accountability of the Legislature Executive and Judiciary under the Constitution of India  organised by a Bar Council
Though in view of the position held by the speaker the contents of the speech and
in particular some savoury  passages therefrom have been highlighted in a section of the Press the speech was made before an audience comprising essentially of lawyers jurists and judges
The speech represented primarily an exercise by the speaker to evaluate the roles of the executive legislature and judiciary in this country since its independence and to put forward the theory that like the executive and 589 the legislature the judiciary must also be accountable to the people
The petitioner contends that there are certain passages in the speech which seem to attribute a sub conscious partiality bias or predeliction in judges in disposing of various matters before them and that these comments fall within the scope of the decision of this Court in the case of EM Sankaran Namboodiripad vs T Narayanan Nambiar  Barrie  Lowe in their Law of Contempt Second Edition PP 233 240 1 and Arlidge and Eady in their Law of Contempt Second Edition PP
162 3 168 on a review of the judicial decisions on the topic seem to suggest that even allegation of partiality and bias on the part of judges may not amount to contempt so long as it is free from the taint of scurrilous abuse  and can be considered to be fair comment 
The observations made by the Lord Justice Phillimore Committee on Contempt of Court in 1974 on this type of contempt Paras 160  161 also make interesting reading
I do not however think it is necessary to pursue this aspect of the matter
In the present case it is true as pointed out by my learned brother there are passages in the speech which torn out of context may be liable to be misunderstood
But reading the speech as a whole and bearing in mind the select audience to which it was addressed I agree with my learned brother no contempt has been committed
I think that we should accept at its face value the affidavit of respondent No 1 that the speech was only a theoretical dissertation and that he intended no disrespect to this Court or its functioning
The second aspect of the case on which arguments have been addressed before us relate to the procedure to be followed in such matters
As this aspect raises some important issues I would like to state my views thereon separately
The criminal miscellaneous petition filed by the petitioner purports to be only information us 151a and b of the  the Act 
The petitioner seeks to inform this Court that he came to know from a report in Hindustan Times  that respondent No 1 in the course of a speech delivered by him at Hyderabad on November 28 1987 had made certain statements which in the petitioner s opinion rendered him liable to be proceeded against for contempt of court
Appending what is stated to be a full text of the said speech as published in the Newstime the petitioner prays that this Court should be pleased to initiate contempt of court proceedings suo motu under section 151 of the Contempt of Court Act 1971 read with rule 3a of the Supreme Court Contempt of Court Rules 1975
Though the prayer is vague as to the person 590 against whom the proceedings are to be initiated the allegations in the petition leave no doubt that it is respondent No l and only he who even according to the petitioner is to be charged with contempt
Nevertheless the petitioner has added three more respondents to the Criminal Miscellaneous Petition namely the Attorney General of India by name the Solicitor General of India by name and Sri 13 Ramoji Rao Editor of Newstime
In my opinion this petition raises certain question of general importance which need to be discussed so as to evolve a proper procedure at least for future guidance in these matters
I proceed to discuss these aspects
Article 129 of the Constitution declares that the Supreme Court shall be a court of record and that it shall have all the powers of such a court including the power to punish for contempt of itself
However the powers of the Supreme Court and High Court in this regard have been recently classified in the 
This Act defines contempt of court and classifies it into two categories civil contempt and criminal contempt
These definitions need not be set out here particularly as the petitioner has filed a criminal miscellaneous petition and it is quite clear that what he seeks to charge respondent No 1 with is criminal contempt
Section 14 deals with contempt in the face of the court and we are not concerned with it here
Section 15 specifies how criminal contempt is to be taken cognizance of
It will be useful to set out here the relevant portions of this section  15
Cognizance of criminal contempt in other cases 1 In the case of a criminal contempt other than a con tempt referred to in Section 14 the Supreme Court or the High Court may take action on its own motion or on a motion made by a the Advocate General or b any other person with the consent in writing of the Advocate General or c in relation to the High Court for the Union Territory of Delhi such law officer as the Central Government may by notification in the official Gazette specify in this behalf or any other person with the consent in writing of such law officer
xxx xxx xxx 591 3 Every motion or reference made under the section shall specify the contempt of which the person charged is alleged to be guilty
Explanation In this section the expression Advocate general means a In relation to the Supreme Court the Attorney General or the Solicitor General xxx xxx xxx 5
This Court has with the approval of the President framed in exercise of its powers under section 23 of the Act read with article 145 of the Constitution rules to regulate proceedings for contempt of the Supreme Court
The rules relevant for our present purpose are the following 3
In case of contempt other than the contempt referred to in rule 2 the Court may take action a suo motu or b on a petition made by Attorney General or Solicitor General or c on a petition made by any person and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General
4a Every petition under rule 3b or c shall contain i the name description and place of residence of the petitioner or petitioners and of the persons charged ii nature of the contempt alleged and such material facts including the date or dates of commission of the alleged contempt as may be necessary for the proper determination of the case iii if a petition has previously been made by him on the same facts the petitioner shall give the details of the petition previously made and shall also indicate the result thereof 592 b The petition shall be supported by an affidavit
c where the petitioner relies upon a document or documents in his possession or power he shall file such document or documents of true copies thereof with the petition
d No court fee shall be payable on the petition and on any documents filed in the proceedings
Every petition under rule 3b and c shall be posted before the Court for preliminary hearing and for orders as to issue of notice
Upon such hearing the Court if satisfied that no prima facie case has been made out for issue of notice may dismiss the petition and if not so satisfied direct that notice of the petition be issued to the contemner
61 Notice to the person charged shall be in Form I The persons charged shall unless otherwise charged shall unless otherwise ordered appear in person before the Court as directed on the date fixed for hearing of the proceedings and shall continue to remain present during hearing till the proceedings is finally disposed of by order of the Court
F 2 When action is instituted on petition a copy of the petition along with the annexures and affidavits shall be served upon the person charged
The Court may direct the Attorney General or Solicitor General to appear and assist the Court
A conjoint perusal of the Act and rules makes it clear that so far as this Court is concerned action for contempt may be taken by the Court on its own motion or on the motion of the Attorney General or Solicitor General or of any other person with his consent in writing
there is no difficulty where the court or the Attorney General choose to move in the matter
But when this is not done and a private person desires that such action should be taken one of three courses is open to him
He may place the information in his possession before the Court and request the Court to take action vide CK Daphtary vs OP Gupta and Sarkar vs Misra   he may place the information before the Attorney 593 General and request him to take action or he may place the information before the Attorney General and request him to permit him to move the Court
In the present case the petitioner alleges that he has failed in the latter two courses this will be considered a little later and has moved this petition praying that this Court should take suo motu action
The petition at this stage constitutes nothing more than a mode of laying the relevant information before the Court for such action as the Court may deem fit and no proceedings can commence until and unless the Court considers the information before it and decides to initiate proceedings
Rules 3 and 4 of the Supreme Court Contempt of Court Rules also envisage a petition only where the Attorney General or any other person with his written consent moves the Court
Rule 5 is clear that only a petition moved under rule 3b and c is to be posted before the Court for preliminary hearing
The form of a criminal miscellaneous petition styling the informant as the petitioner and certain other persons as respondents is inappropriate for merely lodging the relevant information before the Court under rule 3a
It would seem that the proper title of such a proceeding should be  In re  the alleged contemner see Kar vs Chief Justice though that decision related to an appeal from an order of conviction for contempt by the High Court
The form in which this request has to be sought and considered in such cases has also been touched upon by the Delhi High Court in Anil Kumar Gupta vs K Subba Rao ILR 1974 Delhi 1
This case at the outset pointed out that the information had been erroneously numbered by the office of the Court as Criminal original No 51 of 1978 and concluded with the following observations The office is to take note that in future if any information is lodged even in the form of a petition inviting this court to take action us 15 of the or Article 215 of the Constitution where the information is not one of the persons named in section 15 of the said Act it should not be styled as a petition and should not be placed before the judicial side
Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the court whether to take any cognizance of the information
The office to direct to strike off the information as Criminal original No 51 of 1973 and to file it I think that the direction given by the Delhi High Court sets out 594 the proper procedure in such cases and may be adopted atleast in future as a practice direction or as a rule by this Court and other High Courts
However a petition having been filed and similar petitions having perhaps been entertained earlier in several courts I do not suggest that this petition should be dismissed on this ground
In this case apart from filing his information in the form of a miscellaneous petition the petitioner has added as respondents to the petition not only the alleged contemner but three more persons
He says that he approached the Attorney General of India and the Solicitor General of India for their written consent to enable him to file a petition under Section 151 read with rule 3c but that they have refused to exercise the jurisdiction vested in them by law and that therefore they have been impleaded as parties in the present proceedings as necessary andor proper parties in order that they may get an opportunity to justify the stand they have taken in the matter flowing from their refusal to exercise jurisdiction So far as respondent No 4 is concerned the only reason given for impleading him is that the full text of the speech of respondent No 1 has come out in the newspaper published by him and placed before the court and that he was being impleaded only to prove the authenticity of the speech in the event of possible disclaimer of the respondent No 1
In other words respondent No 4 is only a possible witness through whom he proposes to prove the authenticity of the speech which contains the words of alleged contempt
In my opinion this cannot be done
Assuming that a petition is the proper form of approach to the court under rule 3a I have indicated earlier the proper title to such a petition
It will have no respondents and it will be for the court to issue notice to persons against whom a case for contempt needs examination
Viewed as a petition under rule 3c rule 4 envisages only that the petition should contain the name description and place of residence of the petitioners and the persons charged
It does not contemplate any other person being made a party to it
Under rule 6 the notice to the person charged is to be in the form appended to the rules and the form of notice not only makes it clear that it is to be addressed only to a person charged with contempt of court but also contains certain directions appropriate only to such a person
This is naturally so for it is obvious that the only persons who can be respondents in such a petition are the persons who are charged with criminal contempt
The petition as filed here is a petition for initiating proceedings for contempt of court only against respondent No 1
Even if the petitioner has any other cause of action against other persons such persons are neither necessary nor even proper parties to the petition
595 This is especially so because such cause of action is of a purely civil nature
At best the petitioner can say that he is entitled to a writ of mandamus directing the Attorney General and Solicitor General to discharge their statutory obligation in case they fail to do so or a writ of certiorari to quash their decision in case they withhold unreasonably their consent to the petitioner filing a petition
But this is a remedy to be sought independently against these persons by a separate writ petition
He cannot seek to get relief against the Attorney General and Solicitor General by a petition mixing up his criminal charge against respondent No 1 and his civil grievances against the Attorney General and Solicitor General
It is true that on the terms of Section 151 and rule 3c a petition for contempt will not be maintainable by a private person without the written consent of the Attorney General or the Solicitor General
But he cannot seek to get over this objection to the maintainability of a petition without such consent merely by the device of adding them as respondents to the petition even if he had added in the petition a prayer for some relief against them
But in this case even such a prayer is not there and no relief is sought against the Attorney General or Solicitor General
This petition therefore if treated as a petition under rule 3c is not maintainable for want of consent by the Attorney General and the Solicitor General and has to be dismissed as such
That apart as I have already pointed out the inclusion of respondents 2 to 4 as respondents to the petition is totally unjustified and even if the petition is to be taken on record as a mere laying of information under rule 3a the names of respondents 2 to 4 must be struck off from the array of parties
I would direct accordingly
This case itself illustrates the type of difficulties which can arise by filing such a rolled up petition
Having regard to the nature of the allegations against respondent No 1 and the form in which the petition had been presented we were of opinion that the question as to what action if any need be taken by this Court on such a petition called for consideration and we directed the issue of such a notice by our order dated 1021988
The terms of the order make it clear that we wanted to hear the parties mentioned in the petition and the Additional Solicitor General on the above question
Some aspects that arise for consideration are whether the petition is properly framed what is the relief if any that can be given to the petitioner against the alleged refusal of the Attorney General and Solicitor General to give consent to the petitioner to file a contempt petition and whether in case they considered themselves disabled from acting on the application the Additional Solicitor General can be called upon to exercise the said 596 function
We needed assistance on these issues
If the Attorney A GeneralSolicitor General had not been made parties we would have called upon them to assist us under rule 10
Since however they had been added as parties we directed notices to issue to them as to what action if any need be taken on the petition Unfortunately we find that a notice was issued not only to the first respondent named in the petition the alleged contemner but also to the other respondents named in the petition in the form prescribed under the rules containing recitals which are appropriate only in the case of a person charged with contempt of court though a mention was specifically made that the contempt charge was only against respondent No 1
The issue of notices in the prescribed form to the other respondents was unjustified
This type of difficulty arose only because the petition joined as respondents persons who are totally unnecessary for deciding the issue of contempt
There was no question of any contempt  notice being issued to the Attorney GeneralSolicitor General as there was not even a suggestion of any such allegation against them and no other relief had also been sought against them
I think that in the circumstances notices should not have been issued to them in the form in which they were issued
I may next consider the question whether even if the petitioner was particular about his right to file a petition under rule 3C he can have any recourse against the Attorney General and the Solicitor General in case they refuse their consent or as alleged in this case refuse to deal with the petitioner s application
One possible view is that the discretion to be exercised by the Attorney General Solicitor General is a quasi judicial discretion and that its exercise is subject to judicial review by this court
In this connection reference was made to the judgment of this Court in Conscientious Group vs Mohammed Yunus and ors
 JT 19872 377
In that case the petitioner had withdrawn a contempt petition filed by it as the Attorney General had expressed his inability to exercise his jurisdiction for reasons stated by him
Subsequently the petitioner on learning that it could get the consent of the Solicitor General sought to have the earlier order recalled
Bhagwati C J Observed   we would make it clear that it would be open to the petitioner to approach the Solicitor General and to revive the petition after obtaining the consent of the Solicitor General under Rule 3c
Since this remedy is available to the petitioner for reviving the petition for contempt we do not propose to recall the order permitting withdrawal of 597 the petition
The petition can be revived by the petitioner after obtaining the consent of the Solicitor General
We may point out that the petitioner will not be without remedy if the Solicitor General refuses his consent on any irrelevant ground
 The matter was then referred to the learned Solicitor General who declined consent stating that it would not be in public interest to give his consent
The court then considered the reasons given by the learned Solicitor General and came to the conclusion that the ground stated by him for declining the consent could not be said to be irrelevant in the eye of the law or characterised as arbitrary illegal or unreasonable
The petition for contempt was threfore dismissed
From these circumstances it is sought to be suggested that the action of the Attorney GeneralSolicitor General is subject to judicial review by this Court
In my opinion this is not the necessary conclusion that follows from the observations extracted above
Our attention has been drawn by Sri Ganguly appearing for the learned Solicitor General to the decision in Rajagopal Rao vs Murtza Mutjahdi 1974 1 Andhra Law Times 170 and N Venkataramarlappa vs DK Naikar AIR  that the grant or refusal of consent is not justiciable
My learned brother has not accepted the correctness of these decisions on the ground that the statute confers a duty and discretion on these law officers and that their action cannot be beyond judicial review as no person can be above law
I am however inclined to think there is something to be said in favour of the view taken by the two High Courts for two reasons
In the first place the role of the Attorney GeneralSolicitor General is more akin to that of an amicus curiae to assist the court in an administrative matter rather than a quasi judicial role determining a lis involving rights of a member of the public vis a vis an alleged contemner
As pointed out by the Supreme Court in SC Sarkar vs VC Misra   there are difficulties in the Court making frequent use of the suo motu power for punishing persons guilty of contempt
The Attorney General offers his aid and assistance in two ways
On the one hand he moves the Court for action when he comes across cases where he thinks there is necessity to vindicate the dignity and reputation of the Court
On the other he helps in screening complaints from the public to safeguard the valuable time of the Court The observations of Lord Reid and Lord Cross in the 598 Thalidomide case AG vs Times Newspapers  of the House of Lords in a different context in Gouriet vs Union of Post office Workers  and of Lord Denning and Lawton LJ in the same case in the Court of Appeal bring but this aspect of the Attorney General s functions
Secondly if we analyse the types of action which the Attorney GeneralSolicitor General may take on an application made to him the position will be this
Firstly he may grant permission in which case no further question will arise
I do not think it will be open to any other person to come to the court with a prayer that the Attorney GeneralSolicitor General ought not to have given his con sent
For it would always be open to the Court in case they find no reason to initiate action to dismiss the petition
Secondly it is possible that the Attorney GeneralSolicitor General may not be able to discharge his statutory function in a particular case for one reason or other
This was what happened in the case of Mohammed Yunus cited earlier
In that case it was only the Attorney General who was unable to discharge his functions under Section 15 and the petitioner could move the Solicitor General who declined consent
But there might be cases in which both the Attorney General and the Solicitor General are not in a position to take a decision on the application made to them by a private party
Thirdly both of them may refuse their consent
In the latter two cases I am unable to see what purpose would be served by the Court spending its time to find out whether the Attorney GeneralSolicitor General should have given a decison one way or the other
For the petitioner is not without remedy
It is open to him always to place the information in his possession before the Court and request the Court to take action
see Lord Cross in AG vs Times Newspaper at p 321
Bhagwati CJ could have meant this when he said that if the consent of the Solicitor General was withheld on irrelevant grounds the petitioner was not without remedy
the petitioner has submitted that the Attorney General and Solicitor General acted unreasonably in declining to act in the present case
Though as indicated earlier it will not be a fruitful exercise to review such decision particularly when a request for suo motu action under rule 3a has been made the point having been raised I shall consider how valid this complaint is
What the petitioner here did was that instead of merely placing the information with him before the Attorney GeneralSolicitor General and seeking their consent to his filing a petition before the Court the petitioner wrote a letter contain 599 ing a lot of other irrelevant matter
In particular in paragraph 7 he suggested that the Attorney GeneralSolicitor General might feel embrassed in giving consent for the prosecution as the person sought to be charged happened to be the Minister who effectively hires and fires law officers and for all purposes at whose pleasure they hold their office He also expressed his apprehensions about the possible outcome of his request
In other words the petitioner while purporting to seek the consent of the Attorney GeneralSolicitor General simultaneously expressed his lack of confidence in their judgment and their ability to discharge their duties objectively and impartially
It is not surprising that in this situation the learned Attorney General Solicitor General decided not to exercise their statutory powers at all one way or the other
The learned Attorney General has placed before us a statement explaining his stand in the matter
He has pointed out that two occasions had arisen in the past when for compelling reasons he could not deal with an application for consent filed before him
So far as the present case is concerned he has stated The Attorney General has declined to exercise his functions under Section 15 of the Contempt of the Courts Act in view of the allegations of lack of impartiality and independence
These allegations contain a reflection of bias and foreclosure on the part of the Atorney Genera
The Attorney General declined to investigate the matter since the allegation of bias should normally disentitle him from proceeding further with the matter
The Attorney General has followed this course consistently
 From the above narration it is clear that the Attorney General Solicitor General acted rightly and in the best traditions of their office by declining to deal with the petitioner s request and leaving it to the petitioner to follow such other course as he considered advisable
The petitioner had cast aspersions agaist both the Law officers doubting their ability act objectively and thus stultified by his own conduct this course indicated by the statute
The last question that remains to be touched upon is whether in a case where neither the Attorney General nor the Solicitor General is in a position to consider a request under Section 151c it is open to the petitioner to seek the consent of some other law officer such as the Additional Solicitor General
Apart from the fact that in the present case the petitioner would have had the same criticism against the Additional Solicitor General as he had against the 600 Attorney GeneralSolicitor General the clear answer to the question appears to be that it is not open to him to seek such consent
Section 15 is quite clear that the written consent of only those officers as have been specifically authorised by the section would be taken note of for entertaining a petition under the section
But this does not in any way deprive the petitioner of his remedy as he can come to Court as indeed he has done requesting the court to take suo motu action
For purposes of convenience I may sum up my conclusions
They are a This petition if treated as one filed under Section 151 read c with rule 3a is not in proper form and if treated as one filed under rules 3b and 3c is not maintainable as it is not filed by the Attorney GeneralSolicitor General or by any person with his consent
b In either event the petitioner should not have added to the petition respondents other than the person who according to the petitioner is guilty of contempt of court and so their names should be deleted from the array of parties
c In case the Attorney GeneralSolicitor General refuse con sent or decline to act their decision is not judicially reviewable and petitioner s remedy is to approach the Court for action under rule 3a
d In this case the Attorney GeneralSolicitor General acted properly in declining to deal with the petitioner s application either way and e Considering the petition as nothing more than information under rule 3a on which this Court may or may not take suo motu action and after hearing counsel for the alleged contemner we think there is no need to initiate proceedings against respondent No 1 for contempt of court
I therefore agree that the petition should be dismissed
SL Petition dismissed


Summary:
 The appellant and the respondent husband and wife were married under the Hindu Customs in February 1961
Disagreement and disharmony between the two ensued from the very beginning after the marriage
The parties by and large lived together till February 1971 and separately ever since thereafter except for a short period in 1975
The respondent wife as alleged by the appellant did not like to live in the joint family and always created ugly scenes by quarrels etc
The appellant was forced to live separately from the joint family but even then according to him the conduct of the wife continued to be the same bad
The appellant alleged that he suffered a nervous breakdown because of her behaviour and had to be hospitalised
He therefore filed a petition for a decree of divorce on the grounds of cruelty and desertion
The trial Court granted the divorce
On appeal by the respondent the High Court reversed the decision of the trial Court and dismissed the petition for divorce
A Letters Patent Appeal by the appellant was dismissed by the High Court
The appellant appealed to this Court for relief by special leave
Dismissing the appeal the Court  HELD It could not be held that the respondent was behaving with the appellant in a manner which could be termed as cruelty which entitled the appellant to get a decree of divorce
Sometimes the temperament of the parties may not be conducive to each other resulting in petty quarrels but it could not be held on the basis of any material that the ailment of the appellant was the direct result of the respondent s conduct
The High Court was right in coming to the conclusion that there was no material to prove that the respondent treated the appellant with such a cruelty as would entitle the appellant to a decree of divorce
The judgment of the High Court maintained
350G H 351A B