IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Cont.Case (C).(Un-numbered) of 2010 ------------------------------------------------------- PETITIONER:- -------------------- P.REHIM, S/O.PAREED KUNJU, AGED 50 YEARS, ADVOCATE, T.C.25/3235(3), VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SRI.RASHEED C.NOORANAD RESPONDENTS:- ------------------------- M.V.JAYARAJAN, ADVOCATE, EX-M.L.A., S/O.KUMARAN, KUMARALAYAM, NEAR PERULASSERY HIGH SCHOOL, P.O.MUDALLOOR, KANNUR & 5 OTHERS. ADVOCATE GENERAL SRI.C.P.SUDHAKARA PRASAD, I/B.SENIOR GOVT.PLEADER SRI.T.B.HOOD. ADV.SMT.PINKU THALIATH ALSO ARGUED. THIS UNNUMBERED CONTEMPT CASE (C) HAVING COME UP FOR ORDERS ON 15/09/2010, THE COURT ON 12/10/2010 PASSED THE FOLLOWING:- J.Chelameswar, C.J., A.K.Basheer & K.M.Joseph, JJ. ----------------------------------------- Cont. Case (C) No. of 2010 ----------------------------------------- Dated this the 12th day of October, 2010 ORDER J.Chelameswar,C.J. This matter is listed before us pursuant to an order passed by a Division Bench of this Court, to which one of us (J.Chelameswar,C.J.) is a member. 2. The above-mentioned order came to be passed by the Court pursuant to a note made by the Registry dated 2.7.2010 in an un-numbered contempt case. The said contempt case is filed with a prayer as follows: “The petitioner only begs leave to submit that this is an eminently fit case for proceeding against the 1st respondent under the Contempt of Court Act notwithstanding the absence of Advocate General's consent. In case it is found that consent of the Advocate General is necessary to maintain this petition suo motu contempt action may be initiated against the 1st respondent or permission may be granted to the petitioner for moving for consent of the Advocate General. The petitioner most respectfully prays that 1st respondent may be punished for the Contempt of Court committed by him by the imposition of imprisonment as provided for under Sec.12 of the Act”. Cont.Case (C).No. .... of 2010 - 2 - 3. On receipt of the papers, the Registry entertained certain doubts regarding the maintainability of the contempt case. Relevant for the present purpose is - (i) whether a contempt case such as the one sought to be presented before this Court, which is not either moved by the Advocate General or by a person after duly obtaining consent of the Advocate General can be placed before the High Court on the judicial side or should it be considered by the Chief Justice on the administrative side as opined by a Division Bench of this Court in its order dated 19.02.2007 in an un-numbered Cont.Case (Crl.) of 2007 = 2007 (1) KLT 897 [One Earth One Life v. Sindhu Joy] ; (ii) whether it is competent for the Chief Justice or a Judge nominated by him thereupon to take a decision whether a contempt case should be registered and placed before the appropriate Bench for preliminary hearing; or (iii) whether the Chief Justice is required to cause the matter to be placed before the Full Court for its opinion as to whether a suo motu criminal contempt case is to be initiated on the basis of such papers as is opined by another Division Bench of this Court in Suo Motu Contempt [2009 (1) KLT 695]. Cont.Case (C).No. .... of 2010 - 3 - 4. In the light of the said doubt expressed by the Registry, the Division Bench also noticed that another decision of this Court reported in Sukumaran v. Jacob [1986 KLT 32 (DB)] was also not noticed by the Division Bench in deciding 2009 (1) KLT 695 and, therefore, by the order dated 3.8.2010 thought it fit that the matter be considered by a Full Bench of this Court, to have an authoritative pronouncement. 5. The brief factual background in which all these questions arise is as follows: The petitioner is a lawyer practicing in Thiruvananthapuram Courts in the State of Kerala. One Shri.M.V.Jayarajan, who is a former Member of the Legislative Assembly of Kerala, is alleged to have made certain objectionable speech against a judgment of this Court and a specific attack on two sitting Judges of this Court who authored the said judgment. The alleged speech by the above-mentioned Mr.Jayarajan, it appears, is published in two vernacular dailies, called “Malayala Manorama” and “Mathrubhoomi” dated 27.06.2010. It is also alleged in the petition that the alleged utterances are also telecast through visual media. The Editors of the newspapers and the Companies responsible for the above-mentioned telecast are also sought to be brought in as Cont.Case (C).No. .... of 2010 - 4 - respondents to this proceedings. The substance of the above petition is that the utterances made by the above-mentioned Mr.Jayarajan and the publication of the same is “deliberate and wilful interference in the free flow of justice” and constitutes contempt of Court, punishable both under Sections 14 and 15 of the Contempt of Courts Act, 1971 (70 of 1971). 6. Heard the learned Senior Counsel for the petitioner Shri.N.Dharmadan and the learned Advocate General Shri.C.P.Sudhakara Prasad. 7. A number of decisions are referred to by the counsel appearing on either side with a view to assist this Court in arriving at an exact legal position in the background of the current controversy. We shall refer in detail only to some decisions dealing with the history of the law of contempt, nature of the power to punish for contempt under Article 215 and the powers of the Courts of record, etc., which we think are necessary in the context of the question referred to this Full Bench. 8. At the outset, we must mention, the purpose and nature of the contempt jurisdiction was described by the Supreme Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] as follows:- Cont.Case (C).No. .... of 2010 - 5 - “The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining 'the jury, the judge and the hangman' and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice”. 9. Before we proceed to examine the various authorities, we would like to briefly survey the Constitutional and statutory environment pertaining to the law of contempt. 10. Article 215 declares as follows: “215. High Courts to be courts of record.- Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”. It can be seen from the above that every High Court shall have power to punish for contempt of itself along with such other powers which are incidental to a court of record. It is beyond the scope of the present inquiry to explore the full amplitude of Article 215 except to take note of Cont.Case (C).No. .... of 2010 - 6 - the fact that the said article recognises every High Court in this country to be a court of record and also recognises the authority of each High Court to punish for contempt of Courts. The history and background of the said article is discussed in some detail in Sukhdev Singh v. Teja Singh,C.J. [AIR 1954 SC 186]. 11. Article 246 of the Constitution declares that the Parliament and the Legislatures of each of the States in the Union of India shall have the power to make laws with reference to the various fields of legislation indicated in the three Lists contained in the Seventh Schedule to the Constitution. Entry 77* of List I of Seventh Schedule read with Article 246 Clause (1) authorises the Parliament to make laws with regard to the constitution, organisation, jurisdiction and powers of the Supreme Court, including contempt of court of the Supreme Court, etc., while Entry 14** of List -III of the Seventh Schedule read with Article 246 Clause (2) empowers both the Parliament and the -------------------------------------------------------------------------------- * Entry 77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court. **Entry 14.Contempt of court but not including contempt of the Supreme Court. Cont.Case (C).No. .... of 2010 - 7 - concerned State Legislature to make laws on the topic of contempt of court, other than the contempt of the Supreme Court. Such concurrent power is, of course, subject to Article 254 of the Constitution of India, the details of which are not necessary for the present purpose. 12. In exercise of the powers referable to the above mentioned two Entries, the Parliament made a law - The Contempt of Courts Act, 1971 (70 of 1971). Under the scheme of the said Act, contempt of court is identified as falling into two categories, either “civil” or “criminal” under Section 2(a)*. Both the expressions “civil contempt” and “criminal contempt” are defined in Section 2(b) and 2(c) as follows:- “S.2(b) “civil contempt” means wilful disobedience to any judgment, decree, direction order, writ or other process of a court or wilful breach of an undertaking given to a court”; S.2(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which - (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or --------------------------------------------------------------------------------- *Sec.2(a) “contempt of court” means civil contempt or criminal contempt”. Cont.Case (C).No. .... of 2010 - 8 - (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”. Section 12 of the Act prescribes the punishment for contempt of court, which authorises the imposition of the punishment of imprisonment for a term upto six months or with fine which may extend to two thousand rupees or with both. Sub-section (2) categorically declares that no Court shall impose a sentence in excess of what is specified in sub-section (1). Such a declaration covers both the categories of contempt - civil and criminal - of any Court. Sub-section (3) further specifies that in the matters of civil contempt, if the Court considers that a fine will not meet the ends of justice and a sentence of imprisonment is necessary, then the Court should direct that the contemnor be detained in civil prison. The relevance of these various limitations will be discussed later in the order. 13. Section 14 prescribes the procedure by which a person committing contempt in the presence or hearing of the Court is to be dealt with. Section 15 deals with the criminal contempt and the mode of taking cognizance of criminal contempt. Section 15 reads as follows:- Cont.Case (C).No. .... of 2010 - 9 - “15. Cognizance of criminal contempt in other cases.- (1) In the case of a criminal contempt, other than a contempt 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 to 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. (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate- General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this 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; (b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established; Cont.Case (C).No. .... of 2010 - 10 - (c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf”. It can be seen from the above that the criminal contempt of the High Court, other than a contempt committed in the presence or hearing of such Court, may be taken cognizance of either on the own motion of such a Court or on a motion made by the Advocate General or any other person, with the consent in writing of the Advocate General. On the other hand, in the case of criminal contempt of a subordinate Court, the same may be taken cognizance of by the High Court either on a reference made to it by the subordinate court or on a motion made by the Advocate General. However, on the question whether the High Court is barred to take cognizance of a contempt of subordinate court, except where the same is brought to the notice of the High Court by authorities of the above mentioned two Articles, the Supreme Court held in Board of Revenue, U.P. v. Vinay Chandra [AIR 1981 SC 723] at para 17 as follows: “A comparison between the two sub-sections would show that whereas in sub-section (1) one of the three alternative modes for taking cognizance, mentioned is “on its own motion”, no such mode is expressly provided in sub-section (2). The only two modes of taking cognizance by Cont.Case (C).No. .... of 2010 - 11 - the High Court mentioned in sub-sec.(2) are: (i) On a reference made to it by a subordinate court; or (ii) on a motion made by the Advocate-General, or in relation to a Union Territory by the notified Law Officer. Does the omission in Section 15(2) of the mode of taking suo motu cognizance indicate a legislative intention to debar the High Court from taking cognizance in that mode of any criminal contempt of a subordinate court? If this question is answered in the affirmative, then, such a construction of sub-section (2) will be inconsistent with Section 10 which makes the powers of the High Court to punish for contempt of a subordinate court, co-extensive and congruent with its power to punish for its own contempt, not only in regard to quantum or pre-requisites for punishment, but also in the matter of procedure and practice. Such a construction which will bring Section 15(2) in conflict with Section 10, has to be avoided, and the other interpretation which will be in harmony with Section 10 is to be accepted. Harmoniously construed, sub-section (2) of Section 15 does not deprive the High Court of the power of taking cognizance of criminal contempt of a subordinate court, on its own motion, also. If the intention of the Legislature was to take away the power of the High Court to take suo motu cognizance of such contempt, there was no difficulty in saying so in unequivocal language, or by w2ording the sub-section in a negative form. We have, therefore, no hesitation in holding in agreement with the High Court, that sub-section (2) of Section 15, properly construed, does not restrict the power of the High Court to take cognizance of and punish contempt of a subordinate court, on its own motion”. Cont.Case (C).No. .... of 2010 - 12 - 14. Earlier, a Division Bench of this Court had occasion to examine the question as to the appropriate procedure to be followed in a petition disclosing allegations of criminal contempt, but filed without obtaining the consent of the Advocate General. In an un-numbered criminal contempt case of 2007 [2007 (1) KLT 897], this Court, by its order dated 19.02.2007, opined that: “Such a petition going by the principle laid down by the Apex Court in Bal Thackrey's case cannot be entertained. Further the principle laid down by the Delhi High Court in Anil Kumar Gupta's case which was approved by the Apex Court in Duda's case has to be followed in this case. We make it clear that the Registry has to take note of in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Art.215 of the Constitution, where the informant is not one of the persons named in S.15 of the Contempt of Court Act it should not be styled as a petition and should not be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice on the administrative side and if the Chief Justice or such other Judge as may be designated by him for the purpose, considers it expedient or proper to take action under the Act, shall direct that the said information be placed for preliminary hearing”. So, it can be seen from the above extract that such petitions, praying for initiation of proceedings for criminal contempt by persons other than the Cont.Case (C).No. .... of 2010 - 13 - persons specified in Section 15 of the Contempt of Courts Act, shall be treated as information falling within the scope of Rule 7 of the Contempt of Courts (High Court of Kerala) Rules and are required to be placed before the Chief Justice on the Administrative side. The Chief Justice or the Judge nominated by the Chief Justice, on an examination of such information considers it expedient or proper to take action, he shall direct that the information be placed for preliminary hearing. However, another Division Bench of this Court by its decision dated 19.01.2009 in C.C.(Crl.).No.1 of 2009 [2009 (1) KLT 695] held as follows:- “But, the Rules framed by the High Court under the Contempt of Courts Act say that any information regarding commission of contempt for initiation of suo motu proceedings should be placed before the Chief Justice on the administrative side. The Chief Justice may decide himself whether it is expedient or proper to take action under the Act and direct the said information be placed for preliminary hearing. This can be done by the Judge designated by the Chief Justice for the said purpose also. It is a decision on the administrative side. As per our Rules, once such a decision is taken, the matter should go directly to the Bench authorised to hear contempt matters as per the roster. But, in the light of the provisions of S.15 of the Act, the matter has to be placed before the Full Court and if only the Full Court decides to take action, the matter can be placed before the Bench for hearing. When the High Court is empowered to do something as per the Constitution Cont.Case (C).No. .... of 2010 - 14 - or any other Act, if it is an administrative function (meaning some function other than judicial function), it has to be done by the Full Court. If it is a judicial function, it has to be done by the appropriate Bench, as provided in the Kerala High Court Act or under the relevant enactment. The decision of this Court to place the contempt matter before the Bench for hearing, is one, which should be taken by the Full Court, as S.15 of the Act authorises only the High Court and not the Chief Justice to take action”. It was a case where suo motu proceedings were initiated for criminal contempt on the basis of an opinion of a Judge designated by the Chief Justice of this Court. Such proceedings came to be initiated against an editorial in a news paper brought to the notice of the then Acting Chief Justice on the Administrative side. 15. It is obvious from the above two extracts that there is a clear conflict of opinion between the two Division Benches with regard to the procedure that required to be followed in the matter of initiation of suo motu criminal contempt proceedings when the same is moved by a person other than the Advocate General without obtaining the consent of the Advocate General. Hence the present reference. 16. We may also at the outset record that the order dated 19.02.2007 [2007 (1) KLT 897] of a Division Bench of this Court referred to supra does not appear to have been brought to the notice of Cont.Case (C).No. .... of 2010 - 15 - the later Division Bench. Apart from that, another Division Bench of this Court in a case reported in 1986 KLT 32 had already rejected a submission that initiation of suo motu contempt proceedings must be by the Full Court consisting of all the Judges of the High Court, as the power to punish for contempt is vested in the High Court, but not either in the Chief Justice or some of the Judges of the High Court and a Division Bench is not empowered to take a suo motu action for contempt. At para 5 of the said judgment, the Division Bench held as follows:- “We do not see any substance in this contention. S.3 of the Kerala High Court Act (Act 5 of 1959) enumerates the powers of the High Court that can be exercised by a single Judge. The powers of the High Court to be exercised by a Division Bench are mentioned in S.4 and all powers not expressly enumerated are to be exercised by a Division Bench, as provided for in sub-section (7) extracted below: “All matters not expressly provided for in this Act or in any other law for the time being in force”. What the Act as its preamble states is “to make provision regulating the business and the exercise of powers of the High Court of the State of Kerala”. How the powers of the High Court are to be exercised is thus regulated by Statute. S.18 of the Contempt of Courts Act enacts that “every case of criminal contempt under S.15 shall be heard and determined by a Cont.Case (C).No. .... of 2010 - 16 - bench of not less than two Judges”. There is thus express provision in the Contempt of Courts Act empowering a bench of two Judges to take action for Contempt of court. There cannot be any doubt that the action to be taken for contempt under S.15 of the Contempt of Courts Act is a judicial act, the powers in respect of which are to be exercised in accordance with the statutory provisions contained in S.4 of the Kerala High Court Act and S.18 of the Contempt of Courts Act. These statutory provisions are not in conflict with Article 215 of the Constitution in as much as Article 215 doe3s not prescribe the mode of exercising the power vested in the High Court to punish for contempt of itself. There is no statutory provision regulating the consultation or recommendation referred to in Article 233 of the Constitution, and such consultation or recommendation can only be of the High Court consisting of all the Judges of the High Court. The analogy sought to be drawn is therefore without substance and we overrule the objection to jurisdiction raised by the respondents”. But, unfortunately, it appears that the said judgment was also not brought to the notice of the Division Bench which decided C.C.(Crl.). No.1 of 2009 [2009 (1) KLT 695] supra. 17. The learned counsel for the petitioner Shri.Dharmadan argued that the power of the High Court