Case: P.N. Dua Vs. P. Shiv Shanker and Ors.

Sabyasachi Mukherjee, J. 1. By an order dated 15th March, 1988 we declined in this matter to initiate contempt proceedings under Section 15(1)(a) and (b) of the Contempt of Courts Act, 1971 (hereinafter called the Act) read with Rule 3(a)(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 R.N. Trivedi. We stated that we will indicate our reasons by a separate judgment. We do so herein. 2. Shri P. Shiv Shankar who at the relevant time was the Honble Minister for Law, Justice and Company Affairs delivered a speech before a meeting of the Bar Council of Hyderabad on 28th November, 1987. Shri P.N. 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. 3. We have read the entire speech. It is not necessary to set out the 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 i.e. 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. 4. 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 U.S. 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. 5. 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 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 supplementing and complementing each other. 6. 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 Coopers case. Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court. 7. Shri P.N. 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 15(1)(a) and (b) of the Act read with Explanation (19 and Rule 3(a)(b) and (c) of Contempt of Supreme Court Rules, 1975 in the matter of said Shri P.N. Duda was made wherein Shri P. Shiv Shankar, the learned 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 Honble Court. He further stated that he has high regard for this Honble 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 R.N. 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 2(c) 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. 8. 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 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 v. Attorney General for Trinidad and Tobago [1936] A.C. 322. 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. 9. In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar 1970CriLJ1670 , 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 the ruling classes the judiciary works against workers, peasants and 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 19(1)(a) 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 teachings of Marx and Engels and on this ground claimed protection of the first clause of Article 19(1) of the Constitution. The conviction of the appellant was upheld by this Court. It was observed by Hidayatullah, C.J 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 interests and class prejudices, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the Judiciary. It 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 19(1)(a), 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 19(1)(a) 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 recognize 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 1916-1925 Page 1032). 10. 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 v. People of the State of New York 49 Lawyers Edition 195-198 U.S. 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 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. 11. 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 S. Mulgaokar [1978]3SCR162 . 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 show-cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items. 12. 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 a part 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 misstatement 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 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 and/or 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 communitys 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, intimidator 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. 13. It is well to remember the observations of Justice Brennan of U.S. Supreme Court (though made in the context of law of libel) in New York Times Company v. L.B. Sullivan 376 U.S. 254 that it is a prized privilege to speak ones 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. 14. Lord Denning in Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 W.L.R. 1204 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 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 controversy. 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. 15. 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 Honble Ministers speech in the instant case. 16. Gajendragadkar, C.J. in Special Reference No. 1 of [1965] 1 SCR 413 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. 17. It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that Judges, like Caesars wife, must be above suspicion, per Krishna Iyer, J. in Shri Baradakanta Mishra v. The Registrar of Orissa High Court and Anr. 1974CriLJ631 . 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 remedy less 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 v. State of Madhya Pradesh 1978CriLJ917 , 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 prejudging 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. 18. 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 search for light among the social elements of every kind that are the 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). 19. 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. 20. 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 uncoordinated philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside arid 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, 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 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 inescapable 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 (32 Political Science Quarterly 315), 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 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 something 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 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) 21. If anyone draws attention to this danger and aspect and measures an institution by the class content he does not minimize 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 Ministers statement does not interfere with the administration of justice. Administration of justice in this country stands on surer foundation. 22. J.A.G. 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 class-based judiciary: The youngsters believe that we come from a narrow background-its all nonsense-they get it from that man Griffith. 23. 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 function 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 uphold and do uphold. 24. 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. 25. Reference may also be made to the decision of this Court in Conscientious Group v. Mohammed Yunus and Ors. 1987CriLJ1182 . 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 1986CriLJ1736 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, C.J., Oza and K.N. 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 petitioners 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 as that denigrates the judicial institution and in the long term impairs the democratic process. 26. 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 3(c) 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. 27. 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 downtrodden 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 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 U.S. 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 Bharatis and Golaknaths 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 Coopers case. This is also a criticism of the judgment in R.C. Coopers 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: Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court. 28. 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 antisocial 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. 29. 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. in S. Mulgaokars 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. 30. 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 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 3(c) 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. 31. 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. 32. On this aspect it is necessary to refer to the letter dated 3rd December, 1987, which Shri P.N. 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 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 15(1)(a) of the Contempt of Courts Act 1971 seeking my participation as an amicus curiae. 33. 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 15(1)(b) of the Act read with Rule 3(3) 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. Shaus statement seriously, nor was it addressed to a large audience. Shri Shiv Shankars 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. 34. 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: 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 whichever 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. 35. 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. 36. 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 and/or 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. 37. 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 placed in the case of Vassiliades v. Vassiliades and Anr. A.I.R. 1945 P.C. 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 15(1) 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 justiciability of giving the consent is interlinked on the analogy of Order II Rule I of the CPC 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 A.K. 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 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 interlinked. 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 S.K. Sarkar v. V.C. Misra. 1981CriLJ283 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 Sub-section (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 it 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 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? 38. The question of contempt of court came up for consideration in the case of C.K. Daphtary and Ors. v. O.P. Gupta and Ors. [1971] Su. S.C.R. 76. In that case a petition under Article 129 of the Constitution was filed by Shri C.K. 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 143(2) 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 Committees recommendation in U.K. 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 Committees recommendations in India as to why the Attorney General should be associated with it, and thereafter in U.K. 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. 39. Our attention was drawn by Shri Ganguly to a decision of the Allahabad High Court in G.N. Verma v. Hargovind Dayal and Ors. AIR1975All52 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 Contempt of Courts Act, 1971. 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 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. 40. It was contended that neither the Attorney General nor the Solicitor General were proper or necessary parties. Reliance was placed on B.K. Kar v. The Chief Justice and his Companion Judges of the Orissa High Court and Ors. [1962]1SCR319 . In that case under an order passed by the appellant, a Magistrate, one G 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. G 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 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 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. 41. As mentioned hereinbefore in the case of S.C. Sarkar v. V.C. 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. 42. Reference may be made to the case of Attorney General v. Times Newspapers Ltd. [1973] 3 All E.R. 54. 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 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 modem 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 1973 1 All E.R. 815 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 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. 43. 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. v. Union of India and Ors. : [1986]159ITR856(SC) , the observations of the aforesaid decision in Thalidomide case were relied upon. 44. Reliance was also placed on the observations of the House of Lords in Gouriot and Ors v. H.M. Attorney General [1978] A C 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 v. Union of Post Office Workers [1978] A C 435 where the House of Lords could find no legal basis for the lower courts attempt to outflank the Attorney Generals refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiffs 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 v. Union of Post Office Workers and Ors. [1977] 1 Q.B. 729 though made in connection with the Attorney Generals discretion in giving consent in instituting a suit for injunction by a member of the public. In U.K. 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 C.K. Daphtary and Ors. (supra) at page 109 of the report. 45. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi [1974] 1 ALT 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 v. D.K. Naikar AIR1978Kant57 . 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. 46. 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.

Decision reasoning: 0[ds]10. 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 v. People of the State of New York 49 Lawyers Edition 195-198 U.S. 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 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.11. 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 S. Mulgaokar [1978]3SCR162 . 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 show-cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items.12. 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 a part 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 misstatement 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 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 and/or 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 communitys 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, intimidator 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.13. It is well to remember the observations of Justice Brennan of U.S. Supreme Court (though made in the context of law of libel) in New York Times Company v. L.B. Sullivan 376 U.S. 254 that it is a prized privilege to speak ones 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.14. Lord Denning in Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 W.L.R. 1204 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 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 controversy. 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.15. 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 Honble Ministers speech in the instant case.21. If anyone draws attention to this danger and aspect and measures an institution by the class content he does not minimize 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 Ministers statement does not interfere with the administration of justice. Administration of justice in this country stands on surer foundation.25. Reference may also be made to the decision of this Court in Conscientious Group v. Mohammed Yunus and Ors. 1987CriLJ1182 . 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 1986CriLJ1736 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, C.J., Oza and K.N. 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 petitioners 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 as that denigrates the judicial institution and in the long term impairs the democratic process.26. 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 3(c) 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.27. 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 downtrodden 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 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 U.S. 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 Bharatis and Golaknaths 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 Coopers case. This is also a criticism of the judgment in R.C. Coopers 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:Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.28. 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 antisocial 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.29. 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. in S. Mulgaokars 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.30. 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 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 3(c) 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.31. 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.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 justiciability of giving the consent is interlinked on the analogy of Order II Rule I of the CPC 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.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 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 interlinked. 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 S.K. Sarkar v. V.C. Misra. 1981CriLJ283 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 Sub-section (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 it 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 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?38. The question of contempt of court came up for consideration in the case of C.K. Daphtary and Ors. v. O.P. Gupta and Ors. [1971] Su. S.C.R. 76. In that case a petition under Article 129 of the Constitution was filed by Shri C.K. 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 143(2) 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 Committees recommendation in U.K. 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 Committees recommendations in India as to why the Attorney General should be associated with it, and thereafter in U.K. 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.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 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.In that case under an order passed by the appellant, a Magistrate, one G 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. G 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 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 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.41. As mentioned hereinbefore in the case of S.C. Sarkar v. V.C. 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.43. 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. v. Union of India and Ors. : [1986]159ITR856(SC) , the observations of the aforesaid decision in Thalidomide case were relied upon.44. Reliance was also placed on the observations of the House of Lords in Gouriot and Ors v. H.M. Attorney General [1978] A C 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 v. Union of Post Office Workers [1978] A C 435 where the House of Lords could find no legal basis for the lower courts attempt to outflank the Attorney Generals refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiffs 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 v. Union of Post Office Workers and Ors. [1977] 1 Q.B. 729 though made in connection with the Attorney Generals discretion in giving consent in instituting a suit for injunction by a member of the public. In U.K. 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 C.K. Daphtary and Ors. (supra) at page 109 of the report.45. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi [1974] 1 ALT 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 v. D.K. Naikar AIR1978Kant57 . 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.46. 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.