DR. D.C. SAXENA

HON'BLE THE CHIEF JUSTICE OF INDIA

JULY 19, 1996

[K. RAMASWAMY, N.P. SINGH AND S.P. BHARUCHA, .TJ.]

Constitution of India, 1950 :

A1tic/e 121}-Contempt of Cowt-Wiit petition filed before Supreme Corat-Disn1isscd sununalily by the Bench co1nprising Chief Justice of India as one of the Judges~Pctitimzcrfiling a second w1it petition against the Chief Justice of India levelling allegations against and imputing motives to the CJ I for disn1issing his fiJ:r; t 1vnt petition-Mi/it petition containing inten1perate language and scunilous accusations against the CJI---c.rl allocating the petition to a Bench for hearin5fl'rit petition disn1issed--Conten1pt proceedings D initiated against the petitiollo~Held, allegatiolls made ill respect of the CJ/ in pofonna!lce of his judicial fu!lctioll intc!lded to lower the authmity of a!ld respect for the Cowt a!ld office of the Judge--The allegations sca!ldalise the

C'o1ut-Sca11dalising judge or corut tends to b1ing autho1ity and adn1i11istration of justice into disrespect and disregard and tantan1ounts to contenzpt-Scrurilous abuse of a judge or cou1t, or attacks on personal chqracter of a Judge are acts of contempt-It is duty of the Chief Justice of a Cowt to assign judicial work to his brother Judges-By assigning the second w1it petition to a Bench, CJ! vould not beconie a judge in his own caus~ Petitioner conunitted contenipt of Co1at-Sentenced to sbnple ilnprisonnient for three n1onths.

A11icles 19(1) a!ld 19(2), 129 and 2I~Freedom of speech and expression-Held, is subject to A1tic/es 19(2), 129 and 215, in relation to contempt

of Court, defan1ation or incitelnent to an offenc~Any citizen is entitled to express his opinion about the co1rectness of the judg111ent, order or sentence within dignified alld moderate language, but motives to Judges should not be G attJibuted; it b1ings the adn1inistration of justice into disrespect.

Article 32-Writ petitio11-Summa1y disposal of-Heid, it is not obligato1J' to give reasons for disniissing a vv1it petition.

Contempt of Cowts Act, 1971 : H 677

S. 2(c)-<_'rimi11a/ comempt-W1it petitin11 filed before S11preme Cowt-Co11fai11ini; allq,11tio11s against the Chief Justice nf India for dismissillf? petitioner's earlier ivrit petition-Held, the allegations scandalise the

Colu1-Scanda/ising the Court 1-vould n1ea11 hostile c1iticisn1 of jlldf.tCS or co1u1-Tendency to scandalise the co1ut or tendency to loiver the autho1ity or to obstruct the adnzinistration of justice in any 1nan11er or tc11de11cy to challenge the authmity or majesty of j11stice, wo11/d be a uiminal contempt.

Me11s rea-He/d i11 comempt proceedings proof of mens rea is 11ot relevant-ft is not necessa1y to establish actual intention on the pa1t of contenuzer to inte1fere ivith adn1inistration ofjustice-lf'lzat is relevant is that the offending act produces interference vith or tendency to i11te1fere vith the C course of justice.

Ss. 4 and 5-Repo11 of judicial proceedings and oiticism of judicial act-Held, a citizen is entitled to b1ing to the notice of puhlic at !arie infi1111itics fro111 1vhich any institution including judicia1y suffers jlo111, but D personal attack upon a judge in connection 1vith the office he holds is not protected by la1v-171c allegations n1ade by the co11te111ner in the second YPit petition are neither a fair and accurate rcpo11 of the proceedings in the earlier

ivrit petition nor a fair criticisn1 thereof-bnputation of i111proper 111otives or bias cannot be justified on the 1uinciple of fair conunent.

E Contenipt of Court-Punislunent-Held, contenzpt jraisdiction is intended to uphold the aulh01ity and digniO' of coll!1s of law and protect public confidence reJJosed in then1-Punis/11nent is inflicted not for p1uposes of protecting either the coll!t or an individual judge b11t for the lJli!pose of protecting the p11blic.

F Practice and Procedure :

Pleadings-Held, a pa1tly-in-person or an Ad11ocate has lihe1ty of expression-But they equally oa:e counte1vailing duty to nzaintain dignity,

deconan and order in the cou1t proceedings and judicial process-T71ey should not indulge in 1t1iting in the pleadings scunilous accusations against G a judge or cowt.

The contemner, a Professor of English, tiled before this Court a "Tit

petition seeking: a direction to the Union of India to recover fron1 the then Prime J\.linister of India and President of Congress Party, the expenditure incurred for the private use of Indian Air Force Aircrafts and Helicoptt>rs.

H The writ petition ca1ne to he listed for admission before a Bench comprising:

D.CSAXENAv. HON'BLEC.J.J. 679

the Chief Justice of India and another Judge. The contemner appeared in-person. The Bench sent for the Solicitor General of India and asked him to verify the contents of the \lTit petition. On the next date, i.e. 7th August, 1995, the \\'rit petition ca1ne to he listed before a Bench con1prisi11g the Chief Justice of India and mo other Judges; the Solicitor c; eneral of India placed the record before the Court; and the Court, after perusing the record and hearing the conte1nner, sum1narily dismissed the writ petition.

The conten1ner tiled a second \\Tit petition before this Court arraigning the Chief Justice of India as a party respondent thereto. lie alleged, inter alia, in the said petition that it was improper for the respondent (the Chief Justice of India) to have heard the earlier nTit petition; the respondent by disn1issing the earlier \Vrit petition, ll'ilfully and advertently vi.:, Iated the fundamental rights not only of the petitioner but also of the people of the India; the respondent caused fabrication of court proceedings of 7.8.1995 in the earlier YtTit petition as the said proceedings did not indicate the presence of the Solicitor General of India; the respondent deliberately

and wilfully failed to perform hmdamental duties and stultified their per- D for1nance by the petitioner; dis1nissal of the earlier \\'rit petition Yt'ithout recording: reasons \\'as against the rn'in princi11Ies of transparency and accountability; the respondent had attempted but failed to bro\\'heat the petitioner; the respondent by allowing his son, a law:yer practising in the Supreme Court, to stay \\.ith him in his official residence presumably to E n1isuse the official facilities and prestige of oflice of Chief Justice of India; during pendency of the "Tit petition the respondent "be advised to proceed on leave; so that he may not directly or indirectly influence any of the judges hearing the matter"; the respondent was Hable to reimburse from his pocket not only the cost incurred by the petitioner in the two writ petitions, but also the entire loss caused to the State as a consequence of non-payment of F dues by the Prime Minister. The petitioner, inter alia, prayed: (a) that it be declared that the respondent was unlit to hold the ollke of Chief Justice of India; (b) that the respondent be stripped of his citizenship; (c) that an FIR he registered against the respondent for con1mitting forgery and fraud; and ( d) that prosecution of the respondent under the Prevention of Corruption Act be directed.

This Court pointed out to the conten1ner the scandalous nature of accusations 1nade in the second '"''rit petition 1 but he persisted for consideration of the said accusation and reiterated that he would stand by the sarne. The Court disrnissed the second \Vrit petition and, considering the H

680 SUPREME COURT REPOR rs [1996] SUPP. 3 S.C.R.

A allegations n1acle therein by the conteJnner against the Chief Justice of India and the Court to be scandalous and scurrilous, directed the issue of notice to the contemner "'h)' proceedings to punish him for conten1pt of the Court be not initiated against him. The conternner \Vas sen'ed \\'ith a conte1npt notice enlisting 14 instante!'i of allegations niade in the second

B \\Tit petition, which "'ould 1nin1a facie constitute contu1nacious conduct of the conten1ner to scandalise the Court.

The contemner filed \\Titten sub1nissions stating that the Bench which dismissed the second writ petition had been constituted by the respondent, \Vho had thereby becon1e a Judge in his 0"11 cause; that the C second \Vrit petition therefore, \.'t'as not listed before a court con1petent to decide it; that the order of its dismissal \.\.'as therefort~, non-est and it \.\.'as still deemed to be pending; that the petition should be listed before a Bench of not less than 5 .Judges; that no conten1pt proceedings could be initiated against hiln and the notice \.'t'as, therefore, premature. Later, the conte1nner filed a statement of arnendments n1odit)'ing only a fe\\' of the itenis enlisted D in the contempt notice and stating that prayers (b) and (c) in the writ petition be treated as deleted.

It \\.'as submitted by the Solicitor General of India, ap11earing as anzicus c1uiae, that the averments made in the second "'rit petition E re•nained on the record; theynereex-facie contumacious and the contemner expressed no regret for \.\'hat he had stated therein; and even the niodified averments '"'ere contumacious.

It \\.'as mainly contended by the conte1nner that he did not seek any gain for himself and he made the avrrments for the public good; he had no F intention to scandalise the court; that the certified copy of the order dt.7.8.95 in the lirst writ petition did not indicate that the Solicitor General appeared as a111icus curiae; the aver1nents n1acle in the \.\Tit petition being: truthful and factual and n1ade \'t'ithout rancour or n1alicc should not he construed scandalous; the provisions of sections 4 and 5 of the Contempt G of Courts Act were applicable; and,. therefore, he did not commit any conten1pt of the Court. The conten1ncr also challenged the constitutionality of the Contempt of Courts Act, 1971.

Disposing of the Contempt Petition, this Court

H HELD : By the Cowt :

D.C. SAXEN1\ v. HON°BLE C.J.I. 681

The contcn1ncr has con1n1itted the contempt o!' this Court under A Article 129 of the Constitution. He s convicted and sentenced to undergo sin1ple imprisonrnent for a period of three n1onths and to pay a line in the sum of Rs. 2,000.

Per K. Ramaswamy, J

1.1. Scandalising the Judges or Courts tends lo bring the authority and administration of law into disrespect and disregard and tantamounts to contempt. Tendency to scandalise the Court or tendency to lower the authority of the Court or tendency to interfere with or tendency to obstruct the adminstration of justice in any manner or tendency to challenge the authority nr majesty or justice, would be a criminal contem1it. All acts which bring the Court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority, constitute contempt C(nnmitted in respect of single Judge or single Court or in certain circun1stances comn1itted in respect of the whole of the judiciary or judicial system. [713-H, 714-A]

E.M.S. Namboodi1ipad v. T. Narayanan Nambiar, [1971] I S.C.R. 697, relied on.

1.2. A libel upon a court is a reflection upon the sovereign people themselves. Scandalising the court is a convenient expression of scurrilous attack on the majesty of justice calculated to undermjne its authority and E public confidence in the administration of justice. The malicious or slenderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes their mind to obey them. If the people's allegiance to the law is so fundamentally shaken it is the n1ost vital and most dangerous obstruction of F justice calling for urgent action. [714-F, 715-E]

C. Raviclwndran Iyer v. Justice A.M. Bhattachmjee & Ors., [1995] 5 sec 457, referred to.

Halsbury's Laws of England, (4th Edn.) Vol. 9 para 27, page 21, G referred to.

13. Scandalising the Court would mean hostile criticism of Judges as Judges or judiciary. Any personal attack upon a judge in connection \\.'ith office he holds is dealt with under law of libel or slender. Yet defamatory publication concerning the Judge as a Judge brings the court or judges into H

A l'ontcn1pt~ a serious i1n1>edin1cnl tojuslire and an inroad on the n1ajesty of ju!'ltite. Any raricature of a judge calculated to IO\\'er the dignity of the court l\'ouh.I destroy, undcr1nine or lend to u11dern1ine public confidL•nl'C in the adrninistration of justice or rnajesty of justice. It \Vould, therefore, be scandalising the Judge as a .Judge~ in other \\'ords, irnputing partiality, corruption, bias, i1nporpcr n1otives to a judge is scandalisation of the court and \\'ould be conte1npt of the court. Even irnputation of lack of ilnpartiatity or fairness to a .iucle in the discharge of his otlicial dutit-s amounts to contetn pt. The gravan1en of the offence is that of lowering: his dignity or authority or an affront to majesty of justice. [716-B-D]

1.4. Punishment is inflicted not for !he purpose of protecting either the Court as a whole or the individual Judges of the Court from a repetition of the attack, but of protecting the public and especially those who either voluntarily or by compulsion are subject to the jurisdicti'on of the Court, from the mischief' they will incur if the authority of the tribunal is undermined or in1paired. In consel)uence, the Court has regarded with particular D seriousness the allegations of partiality or bias on the part of a Judge or a

Court. [714-H, 715-A]

2.1. Freedom of' speech and expression guaranteed by Article 19(l)(a) brings within its ambit the corresponding duty and responsibility and puts E limitations on the exercise of that liberty. If a speech of expression was untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right. Freedom of speech and expression, therefore, would be subject to Articles 19(2), 129 and 215 of the Constitution, in relation to contempt of Court, defamation or incitement to an offence etc. 1711-HE] F 2.2. A citizen is entitled to bring to the notice of' the public at large the infirmities from which any institution including judiciary suffers from.

Courts, the instrumentalities of the State are subject to the Constitution and the laws and are not above criticism. Section 5 of' the Contempt of G Courts Act accords protection to fair criticism and saves from contempt of

Co1n1. Any citizen is entitled to express his honest opinion about the correctness of the judgment, order or sentence with dignified and moderate language pointing out the error or defect or illegality in the judgment, order or sentence. But motives to the Judges need not be attributed. It brings the adrninistration of justice into disrepute. Any criticism about judicial sys- H tc1n or the judges \Vhich hampers the udministration of justice or "'hich

D.C. SAXENA 1•. HON'IJl.E CJ.I. 683

erodes the faith in the oljective approach of the Judges and brings ad- A ministration of justice to ridicule 1nust be prevented.

1712-A-C; 718-F; 712-F-G]

Slui Baradaka11ta Mishra Etc. v, The Registrar of 01issa High Cow1 & Anr. Etc., [1974] 1SCC374; followed.

P.N. Duda v. F. Shiv Slumkar, AIR (1968) 1208, referred to.

Ambard v. Attomey-General for Tli11idad a11d Tobago, 1935 AC 322, referred to.

2.3. An advocate or a party appearing in person is given liberty of C expression. But, they equally O\\'e countervailing duty to maintain dignity, decoru1n and order in the court proceedings or judicial process. Liberty of free expression is not to be confounded or confused vdth licence to n1ake unfounde1I allegations against any institution much less the judiciary.

When an advocate or a party appearing before the Court requires to con- D duct himself in a manner helitting the dignity and decorum of the Court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation against the judge or the Court. If the reputation or dignity of the judge, who decides the case are allowed to be prescribed in the pleadings, it would atli:ct the respect for the Court and independence of the judiciary. [713-E-F; 720-C-D] E

Slui Baradaka11ta Mishra Etc. v. The Registrar of Olissa High Cmm & Anr. Etc., [1974] 1 SCC 374, followed.

Re: Roslwn La/Ahuja, [1993] Suppl. 4 SCC 446; L.D. Jaikwal v, State of U.F., [1984] 3 SCC 405; Re : Slui S. Mulgaokar, [1978] 3 SCC 497; K.A.

Mohammed Ali '" C.N. Frasannan, [1994] Supp. 3 SCC 509; Sambu Nath Iha v. Kedar Prasad Si11ha, [1992] l SCC 573 and Charan Lal Sahu v. Union

of India &Anr., [1988] 3 SCC 255, relied on,

E.M.S. Namboodi1ipad v. T. Naraya11an Nambiar, [1971] I SCR 697, G referred to.

Ambard v, Attomcy-Genera/ for T!inidad and Tobago, 1936 AC 322, referred to.

Special Reference No. I of 1964, [1965] 1 SCR 413, referred to.

A "Reg11ialion of Lmvyers - Problems of Law und Ethics", (Thrid Edition

- 1922) page 747, referred to.

3.1. The conte1nner made allegations in the second 'vrit petition in the language as "it was improper" for the Chief Justice "to hear it (the first writ petition)", "the course of action" by the Chief Justice "in dealing with the B grouse of the petitioner and dismissing his petition, is totally unjust, unfair, arbitrary and unlawful. It is flagrant violation of mandate of Article

14"; " violation of the oath of ollice by" the Chief Justice; the Chief Justice "responded that he (Solicitor General) was there to assist the Court, contrary to evidence of the Court proceedings"; "declare the respondent unfit C to hold the office of Chief Justice of India", When these imputations were pointed out to the contemner by three-Judge Bench while dismissing the second "'rit petition, to be scandalous and reckless, he stated that he "stood by" these allegations. He repeated the same with justification in his preliminary submissions. He has stated that the accusations made ''"'ere truthful and "carefully worded". These imputations are obviously reckless apart D from scandalising this Court, in particular, the Chief Justice of India, and

\\'ere intended to foul the process of the Court or lcnver or at any rate tend to lower the authority of the Court in the estimate of the public and tend to undermine the eflicacy of the judicial process. The accusations are gross contempt. (722-F-H; 723-A]

E 3.2. It is the duty of the Court to hear and decide any matter posted for adn1ission. Therefore, there is nothing improper for the Court presided over by the Chief Justice of India to hear and decide the matter (the first \\Tit petition). (721-G-H]

F 3.3. When the first writ petition came up for admission, the Court sent for the Solicitor General to obtain information from the Government as to the correctness of the allegations. Accordingly the Solicitor General placed the record before the Court, and on perusal thereof the Court declined to exercise the power under Article 32 of the Constitution. In the G proceedings of the Court, recorded by the Staff, it was recorded that the

Solicitor General appeared in the Court in his official capacity. The counsel as Solicitor General of India or in personal capacity obviously acted as amicus on behalf of the Court. [721-H; 722-A-B; E-F]

3.4. The contemner stated that since the first writ petition was not ..

H disposed of by a Bench of not less than five Judges, the writ petition was

D.C. SAXENA v. J-!ON'BLE C.J.L 685

not dismissed in the eye of law and the order of dis1nissal "is non-est" and A it is

11not decided and disposed of constitutionally". This assertion flies in the face of the judicial finality of the order of this Court and tends to question the authority of the Court. It creates tendency to obstruct the administration of justice and, therefore, it, vould he an outrageous criminal contempt. [723-B]

3.5. The conhnner in regard to the tjueStion posed by hin1 in the \\Tit petition, nan1ely, "what are the legal consequences of the violation of oath of oflice by 11 the Chief Justice, states in his 11reliminary sub1nissions that it is a constitutional question re(fUired to be decided by a Constitution Bench.

The oath of office taken by a Judge of this Court is not that he should allow every case or dismiss every case but only to uphold the Constitution and

the laws and to administer justice in accordance therewith in tune with the oath of his office. The protection of Articles 124(4), 121, 211, the Judicial Officer Protection Act and the Judges (Protection) Act is to ensure independence to the judiciary. Threat to judicial process is a challenge to the authority of the Court or majesty of justice. It would be cx-facie contuma- D cious conduct. [726-A-C]

3.6. The contemner alleged that omission to record reasons was violative of the principles of natureal justice and the Chief Justice of Jodi& committed impropriety in deciding the matter. It is not obligatory for this E Court to give reasons .for dismissing the writ petition. Besides, the decision is that of the Bench on behalf of the Court, and the Chief Justice, being the seniormost among the members constituting the Bench, had spoken on behalf of the Bench. Therefore, the attribution of improper motives scandalise the efficacy of judicial adjudication and per se contumaciously lowers or at any rate tends to lower the dignity or authority of the Court. [723-C-D] F

3.7. The prayers (a) to (d) seeking a declaration that the respondent is unlit to hold the office of Chief Justice of India, that the Chief Justice be stripped of the citizenship and seeking prosecution of the Chief' Justice, though sought to be withdrawn, which would be of no conset1uence, are G unbelievably outrageous contempt. [723-E]

4. The contemner by stating iu his writ petition that Chief Justice's utmost reluctance to perform his fundamental duties and constitutional obligations was apparent, which after failing to browbeat the 11etitioner ... n, imputed motives to the Chief Justice in the discharge of his constitutional H

686 Sll l'REME CO\Jlff REPORTS [1996] SU PP. 3 S.C.R.

A duty of deciding a case and that by not ad1nitting the \\Tit petition or by dismissing it, the CJI \\'as reluctant to perform his constitutional duty.

Even in the 1nodified staten1ent, he attributed motives to CJJ in the perfr)rrnance of his constitutional duty \\'hile the Bench that dis1nissed the first

\\Tit petition consisted of' three Judges. By infereru.:e, he suggested the other

Judges to be mere non-entity. lfis revised imputation con1pounds the con1nlission of flagrant conte1npt by substituting: the '''ord

11bro\\'beat" \Vith the \rords

11discerned reluctance". The conten1ner contnn1aciously attributed motives to the Court, in particular to the presiding ofticer of the court, the Chief Justice of India, and !hereby he scandalised the Court in the estimate of the general public. [700-G; 701-B-0; 724-E]

5.l. The conten1ner, referring: to dismissal of his earlier \Vrit petition, imputed to CJI, "and \Vithout recording the reasons for dismissing the petition. So much for the vaunted adherence to the tnin principles of transparancy and accountability". He imputed to the CJI to have facilitated the Congress President to avoid payment of public dues. In his preliminary D submission he had given justification for his attributing motives to CJI

stating that the Solicitor General handed over some documents to the Bench, without supplying copies thereof to him and the Chief Justice asked him to argue on the supposition that nothing has been given to the Bench.

In vie\\' of this, reference has been made to the "t, vin principles of E transparancy and accountaliility". The insinuation tends to bring the Court

into contempt in the estimate of the general public and that the Court lacked fairness, objectivity and dismissed the writ petition for known reasons. It also tends to interfere with the administration of justice and that the Court should give reasons lest the order be believed to be shrouded with suspicion. Therefore, it is ex-facie contumacious. [724-A-B] F

6. The contemner stated in the nrit petition, thus : can the Chief Justice "be allowed to take shelter behind the cloak of judicial immunity, particularly when unlike the President of India, who cannot be impleaded in civil or criminal proceedings during his tenure of otlice, he enjoys no G such constitutional protection? 11 This bravado not only in1pinges upon the protection given by Article 124(4) of the Constitution and under relevant provisions of the Protecti"n of Officials Act. Ex-facie it is an outrageous tendency to lower the authority of the Court and interference nith judicial administration. The assertion of the contemner that this is a constitution conundrum rei1uired to be decided by a Constitution Bench of this Court H highlights contumacious conduct of"the contemner. [725-CD]

D.C. SAXENA v. IJON'IJLE C..1.1. 687

7. The contemncr further stated that "for "ilrully and advertently A , iolating the fundan1ental rights of not only the petitioner as an individual, but that of the people of India, \Vho are ulthnately sovereign, has not "the Lhief Justice "forfeited any legal protection, even if it \rere available to him".

The words "advertently" and "wilfully" do emphasise the emphatic tone of the language and the n1otive of the conte1nner, and attribute rnotives to this Court that the relief sought for in the first \\Tit pt'tition "advertently 11 \\'as B

not granted and was "wilfully" declined and thereby the Chier Justice lost constitutional protection of not being prosecuted. This accusation is a culnlination of the contumacious conduct of wanton scandalisation of the Court and reckless denigration. In his an1ended petition, he further aggravates the conte1npt stating that the disn1issal of the first petition sent C \\Tong signals to the entire judiciary of, vhich the respondent is the head as Chief Justice of India. The scurrilous attack, therefore, is not only on the respondent as a Judge but also as the Chief Justice of lnida and also as head of the institution of the whole country. Thereby he designedly aud deliberately allowed himself being brought within ex-facie criminal contempt. [725-E-H] D

8. The contemner stated that uFor deliberate and \\'ilful failure to perform his fundamental duties and stultifying their performance by the petitioner "the Chief Justice should "be stripped of his citizenship". The contemner attributed that the respondent as Chief Justice of India and as E a Judge of this Court deliberately and wilfully failed to perform his fundamental duties by dismissing the "Tit petition and stultified the performance of fundamental duties by the petitioner. Thereby, he seeks stripping of citizenship of the Chief Justice. It is an unbelievable outrageous affront to the majesty of justice on the part of the contemner and scandalisation of this Court. It tends to lower the dignity and authority of the Court and F also so"'S seed for persons \\'ith similar propensity to undern1ine the authority of the Court or the judiciary as a \\'hole. The contemner crossed all boundaries of recklessness and indulged in 'vild accusations. He sought justification in his preliminary submissions that it being a question of la\\',

it does not amount to personal hnputation or insinuation. This \\'ould G further compound the contempt. [726-D-F]

9.1. The contemner alleged in the writ petition: "For allrming his son who is practising: in the Supreme Court, to stay 'vith him in his oflicial residence, and presurnably 1nisusing official facilities and prestige of office of Chief Justice of India, is not" respondent "liable to be prosecuted under H

A Prevention of Corruption Act". The contemner sought justification to the

.said in1putation from reports said to have been published in a news 1nag:azine and a daily newspaper. But he has not placed on record the said material. He also admitted that he did not make any independent enquiry in this regard. For the said imputation he said that the Chief Justice of

B India is liable to be prosecuted under the Prevention of Corruption Act.

The conten1ner in his preliminary subnlissions reiterated that this is a ttuestion of la\\' based on infor1nation received. He stood by the in1putation and reiterated with further justification in that behalf made in his preliminary submission. The persona! allegation against the Chief.Justice of India of allowing his son to practise in the Supreme Court is false. His permitting C his son to reside in his otlicial residence has no rele\'ance to the first \\-'rit

petition relating to the recovery of alleged dues frorn the Congress Presi~ dent. Irrelevancy of the accusations apart, the prayer for prosecution of the Chief Justice oflndia under The Prevention of Corruption Act is an assault on majesty of justice, affront to authority of law, the gravest conturnacious conduct and scurrilous scandalisation of the Court. [704-G, 705-C-F] D K. Veeraswami v. Union of India & 01:1-., [1991] 3 SCR 189 and C.

Ravichandran Iyer v. Justice A.M. Bhaltachmjee & Ors., [1995] 5 SCC 457, cited.

E 9.2. Article 124(4) of the Constitution read with the Judges (Inquiry) Act prescribes the procedure to take action against a Judge of the Su1ireme

Court or of the High Court for proved misbehaviour or incapacity. Articles 121 and 211 of the Constitution prohibit discussion, in the Parliament or in the Ligislature of a State, of the conduct of a Judge of the Supreme Court or High Court respectively. Therefore, when the Constitution prohibits the F discussion of the conduct of a Judge, by implication, no one has power to accuse a Judge of his misbehaviour or incapacity except and in accordance with the procedure prescribed in the Constitution and the Judges (Inquiry) Act or as per the procedure laid down in Bhattachmjee's case. [727-C-F]

G Ravichandran Iyer v. Justice A.M. Blzallac/1a1jee & Ors .• [1995] 5 SCC 457, relied on.

Ill. The contemner posed, is the respondent "not liable to pay from his pocket not only legitimate cost incurred hy the petitioner but also the foss caused to the public exchequer by non-payment of dues" by the Con- H gress President'? This was reiterated in the preliminary submission. The

D.C. SAXENA v. HON.BLE CJ.I. 689

implication is that by judicial act, if a presiding judge dismisses a petition, A he is liable to bear personally not only the costs incurred by the litigant hut also the resultant loss to the State nith interest payable thereon. This in1putation is a deliberate interference 'rith the judicial process and tends to lower the authority of the Court spreading rippling effect on independence of the judiary, authority of the Court and \Vanton interference \\'ith judicial process. It must be held to be a depraved contumacious conduct. [728-A-C]

ll.l. The contemner stated in the writ petition that the seniormost Judge of the court should be permitted to constitute a Constitution Bench

of judges "excluding any Judg:e \Vho O\\'es his elevation to the apex Court to C the respondent, and during its pcndcncy the respondent " may be advised to proceed on leave, so that he niay not directly or indirecly influence any of the Judges hearing the matter". In his prelin1inary objections he reiterated the assertion. This relates to interference \'t'ith the judicial management of the Court and the duty a Judge, and is a deliberate interference in the judicial 1nanagen1cnt tending to disaflcction in the cflicacy of D <lispeusation ofjustit:e. [728-J)]

11.2. The contcmner further made an accusation that the Chief Justice of India should not constitute a Bench of the Judges appointed during his tenure so that he (Chief Justice of India) may not directly or indirectly E

influence any of the Judges hearing the matter. It would thus be in unequivocal loud expression that the contemner attributed motives to the CJJ that the Judges appointed during his tenure as Chief Justice are amenable to his influence in judicial adjudication and \\'ould decide the causes by 1iressure or influence directly or indirectly brought by the Chief Justice of India. Equally it is a corollary that these Judges are amenable to influence F and thereby they do not decide the cases before them legally and objectively.

The Court is subject to presume and decided cases under inlluence. These allegations are flagrantly outrageous to scandalise the Court. Though the contemner sought leave to n1odify this statement, ultimately, in his an1ended statement, he did not touch upon this aspect and thus stood by G his avern1ents calculatedly n1ade. Thus the conte1nner has cornmitted contempt of this Court under Article 129 of the Constitution. [728-F-GJ

S.P. Gupta v. U11io11 of !11diu, AIR (1982) SC 149, cited.

12.1. In a criminal contempt proceedings of sumn1ary nature, the H

A proor of n1ens rea is absolutely unnecessary. For~ criminal cont.empt as defined in Section 2 (c) of the Contempt of Courts Act, 1971 any enunu:rated or any other act apart, to create disaffection, disbelief in the efficacy of judicial dispensation or tendency to obstruct administration of justice or tendency to lower the authority or majesty oflaw by any act of the

B parties, constitutes criminal contempt. Thereby it excludes the proof of n1ens rea. What is relevant i~ that the offending or affront act produces interference with or tendency to interfere with the course ofjustice. [717-A-B]

12.2. Absence of personal gain to seek in the list except said to have been fired by public duty and has professed respect for the Court, are C ileither relevant nor a defence for the offence of contempt. \Vhat is 1natt!rial

is the effect orthe offending act and not the act per se. [717-C]

12.3. It is, therefore, not necessary to establish actual intention on the part of the contc1nner to interfere \\'ith the ad1ninistration of justice.

I\faking rcckles:, allegations or vilification of the conduct of the Court or the D judge \rould he contempt. Imputation of corrupt or itnproper motive in judicial conduct would impair the etlicacy of judicial di.spensation and due protection of the liberties of the citizen or due ad1ninistration of justice.

[717-~'-E]

13. The Court does not sit to try the conduct of a judge to whom the E imputations are n1ade. It \\'01Ild not be open to the conte1nner to bring

fornard evidence or circumstances to justify or to show \\ 1hether and lunv fairly imputation were justified because the judge is not before the Court.

The defence justification to an imputation \rould not, therefore, be available to the conten1ner. The imputation of improper motives or bias cannot be justified on the principle of fair comment. [718-B] F

14. When this Court pointed out the scandalous nature of accusations which found place in his petition, the contemner persisted for consideration of the aid accusations to lay proceeding against the Chief Justice of India for prosecution and other reliefs. He stated that he \Vould G stand by those accusations. He reiterated them in his preliminary subniissions \\ith further justification. He admitted that many of them are stringent and pungent. He rnodified some but by compounding further contempt. In spite of the Solicitor General pointing out the seriousness of the accusation and the conte1nner having consultation \rith son1e Advocates at the Bar, he did not retract his steps. He did not tender any unconditional H apology, though this Court is not bound to accept such an unconditional

D.C. SA, XENA v. HON'BLE C.J.I. 691

apology. [729-F-H, 730-A-C]

15. Considered fro1n the totality of the facts and circun1stances, the gravest nu•gnitude of the contu1nacio11s conduct of the cnntcmner, he has to he convicted. [7 30-C]

Per Bila111cl!a, J. (Concuning) :

1.1 A.ny act done or \\Titing published \\'hich is calculated to bring a Court or a Judge into contenipt or to lower his authority or to intt:rfere \Vith the due course of justice is a conten1pt of the court; scurrilous abuse of a Judge or Court, or attacks on the personal character of a judge are acts of contempt. [738-D]

R. v. Grey, [19110] 2 Q.ll., 36; He/more v. Smith, (1886) 35 Ch. D. 449; Ambard v. A.G. for T1inided and To/Jago, (1936) A.C. 322; Re. A.G. of

Canada and Alexander ct al, (1976) 65 D.L.R. (3rd) 608 and Re. Wiseman,

(1969) NZLR 55, referred to.

1.2. The contempt jurisdiction is intended to uphold the authority and dignity of the Courts of law \Vhichi on behalf of the State, deliver justice and protect the public confidence that is reposed in them. [739-B]

2. The contempt notice to the alleged contemner pursuant to the E order of dismissal of his second \\Tit petition \\'as issued in exercise of the power of this Court, recognised by Article 129 of the Constitution, to punish for contempt of itself. The issue of the constitutionality of the Contempt of Courts Act is, therefore, not germane. 1739-C]

3. The contemner in the second \\Tit petition stated that the respon- F dent (the Chief .Justice of India) had

11caused fabrication of court proceedings on 7th August, 1995 and \\as, therefore, liable to prosecution under the relevant provisions of the Indian Penal Code". The relevant prayer of the \\Tit petition \\'as that an F.I.R. be registered against the respondent under the Indian Penal Code for con1mitting "forgery and fraud". The 1noditit:a- G tion 1nade by the contemner of the averments in this regard is that the respondent \\'as responsible for

11inaccurate recording of the proceedings of 7th August 1995", and the prayer is sought to be deleted. 111e rnodilication does not speak of inadvertant or inaccurate recording or express and regret for the allegations of fabrication, forgery and fraud. The allegation of inaccurate recording, as 1nade, suggests that such recording \\'as delibt!rate H

A and there is, therefore, no 1nore than some moderation of language. The

allegations of fabrication, forgery, fraud and inaccurate recording of proceedings are n1ade in respect of a Judge in the perfortnance of his judicial function. They are of a 1nost serious character. l'hey are intended

to lon, er the authority of and respect for the Court and the otlice of the

B Judge. [739-G-H, 740-A-C]

4. There are allegations in the second writ petition that the respondent violated his oath of office and failed to perform his fundamental duties. The summary dismissal of a writ petition by a judge is not a violation of his oath or fundamental duties; at \\'orst, it might be a judicial C error. The dis1nissal of a \Vrit petition cannot \\'arrant the charge of viola~

tion of his oath by a Judge; and no n1ore serious charge against a judge can be rnade. \Vhat the conten1ner conveniently does not mention is that the three .Judges (including the respondent) '''ho constituted the Bench found no n1erit in the earlier writ petition and disrnissed it. The averment made in the second writ petition that the earlier \Vrit petition ,, as disrnissed by D the respondent suggests that the other hro Judges counted for nothing.

This is also conten1pt. The allegations are scurrilous and scandalise the Court. [740-D-E]

5. It is the duty of the Chief Justice of a Court lo assign judicial work E to his brother judges. It was, therefore, the duty of the respondent to assign the second \\Tit petition to a Bench to hear it. By doing so he did not, as is alleged, become a Judge in his own cause. It is contempt to imply, as the conten1ner does, that the respondent would assign it to a Bench \\ 1hich \Vould not 11ass an order adverse to hhn. It is also contempt to iinply that Judges would be so amenable. To plead that that Bench that heard the F second writ petition could not h'-'.ard it and, therefore, could not have dismissed it and that it is deemed to be still pending is to add to the conte1npt. These allegations are also aimed at bringing the administration of justice into disreput~. [740-1<~-G]

6. The second writ petition alleged that the respondent had allowed ''his son, \rho is practising in the Su1>reme Court, to stay "ith him in his official residence ;; ind presun1ably mis-using ollicial facilities and prestige of olTice of Chief Justice of India", and sought his prosecution under the Prevention of Corruption Act, the allegation and prayer are not sought to be n1odied. The allegation is not in any way connected \\'ith the dismissal of H the earlier \\'rit petition. It is brought in for no reason other than to vilifY

D.C. SAXENA I'. HON'BLE CJ.I. [RAMASWAMY,].] 693

the respondent in connection with his otlicial duties and position. How A irresponsible the allegation is, is slunvn by the fhct that according to the

c~1ntemner hin1self, it is based only upon \l'hat he read in articles in a newspaper and a news magazine. [740-H, 741-AB]

C. Ravichandran Iyer v. Justice A.M. Bhattachwjee & Ors., [1995] 5 sec 457, cited.

7. The contemner has sought the protection of Sections 4 and 5 of the Contempt of Courts Act, 1971. What he has written in the second writ petition is neither a fair and accurate report of the proceedings of the earlier \\'rit petition nor a fair criticism thereof. The principle underl}ing these provisions is, therefore, not applicable. [741-D] c

8. Having regard to the gravity of the contun1acious statemt'nts, the recklessness \\-'ith nhich they are n1ade, the intemperateness of their languag:t', the mode of their publication in am-it petition in this Court and the conten1ner's influential position in society, punishn1ent only in the nature D of a tine \\''ould not be adequate. A contemner such as the present 1nust also undergo itnprisonment. [741-E]

Per N.P. Singh, J. (Concuning) :

The conclusions arrived at and the sentence imposed against the E contemner as found in thejudgn1ents of K. Ramas\\'amy and S.P. Bharucha, JJ. are concurred with. [730-E]

ORIGINAL JURISDICTION : Contempt Petition No. 38 of 1996.

Jn Re : Dr. D .C. Saxena

Jn The Matter Of: Writ Petition (C) No. D. 17209 of 1995.

(Under Article 32 of the Constitution of India.)

Jn-!ler.son for Contcmnor.

D.P. Gupta, Solicitor General (AC.) and P. Parmeshwaran for the Respondent.

The Judgments/Order of the Court was delivered by

K. RAMASWAMY, J. Jn a clash of competing interests in constitu H

SUPREME COURT REPO~TS [ 1996] SUPP. 3 S.C.R.

A tional contours, this case calls to strike a balance between the freedom of speech and expression, a salutary right in a liberal democratic society and paramount countervailing duty lo maintain public confidence in the administration of justice. The petitioner had initiated public interest litigation under Article 32 of the Constitution to direct Sri P.V. Narasimha Rao, the President of India National Congress and the former Prime Minister of the B country to pay a sum of Rs. 8.29 Lakhs and odd said to be due to the Union

of India for use of Indian Air Force aircraft or helicopters from October 1, 1993 to November 30, 1993. When Writ Petition No. 432/95 was posted for hearing on July 17, 1995 before the learned Chief Justice of India and brother Justice S.C. Sen the Solicitor General for India, Shri Dipankar P.

Gupta was sent for and the Court dirL.:cted him to have the avcrmcnts C verified to be correct and directed the petition to be listed after two weeks.

On August 7, 1995, the wril petition came before the Bench comprising the learned C.JI, Justice S.C. Sen and Justice K.S. Paripoornan. It is not in displllc that the Solicitor General had placed the record before the Court and upon perusal thereof and <.tfter hearing the petitioner-in-person, the D Bench sun1n1arily "disn1isscd" the \Vrit petition \vhich ha<l triggered the petitioner to file yet another \Vrit petition, this tin1c against the learned Chief Justice of India, Justice A.M. Ahmadi. The Registry raised objections for its n1aintainability but, at the insistence of the petitioner) it \Vas poste<l1 \vith officer objections, Jor hearing, as unregistered Writ Petition

(C) No. D- 17209/95 on January 13, 1996 before a Bench of three learned E Judges, viz., Justice J.S. Verma and two of us (Justice N.P. Singh and Justice S.P. Bharucha). The petitioner) again appearing in person, persisted to justify the averments made against the learned C.11, Justice A.M. Ahmadi in the writ petition. In spite of the Court having pointed out that the averments \Vere scandalous, the proceedings of the Court did indicate that the petitioner reiterated that he ''stood by the avermcnts ma<lc thercin 1 ' and F sought fur declaration (1) that .Justice A.M. Ahnwdi is unfit to hold the office as Chief Justice of India; (2) that he should be stripped of his citizenship; (3) to direct registration of an FIR against him under various provisions of In<lian Penal Code for comn1itting forgery and fraud and under the Prevention of Corruption Acl; ( 4) to direct prosecution of him under the Prevention of Corruption Act; (5) tc direct him lo defray from G his personal pocket lhe expenses incurred by the petitioner in filing the two writ petitions, i.e., W.P. No. 432/95 an the second writ petition; (6) to direct Justice A.M. Ahmadi to reimburse from his pocket to the public exchequer the entire los~ caused to the State, as a consequence of non-pay1ncnt of the dues by Sri P.V. Narasin1ha Rao \Vith interest at 1six per annun1 and H (7) other consequential directions.

D.C. SAXENA v. HON'BLE CJ.I. [RAMASWAMY, J.] 695

After hearing the petitioner, the Bench dismissed the second writ A petition with the order as under :

"The several avennents in the \Vrit petition are scandalous and it is surprising that the petitioner, who is, said to be a Professor in a University, has chosen to draft and file such a writ petition. His understanding of the meaning of Article 32 of the Constitution, is to say the least, preposterous. The allegations made are reckless and disclose irresponsibility on the part of the petitioner. This writ petition is wholly misconceived and is an abuse of the process of the Court. The writ petition has no merit.

The \Vrit petition is, therefore, dismissed.

In vie\v of the attitude of the petitioner even at the hearing, \vhen he persisted in this stand and, on our asking hin1, reiterated that he stood by the scandalous avern1ent n1a<le therein, \Ve consider it

our duty to issue to the petitioner a notice to sho\v cause \vhy proceedings to punish him for contempt of this Court should not D bt: initiated against hitn. The Registry to take the necessary steps for registering the n1attcr as a contempt petition. The petitioner \Vhn is present-in-person is given notice of the contempt petition.

He is required to file his reply within four weeks to show cause why proceedings for contempt should not be initiated against him.

E We request the learned Solicitor General to assist the Court in this contempt matter.

List the matter after notice of the date fixed by Registry is given to Dr. D.C. Saxena and the Solicitor General."

While dismissing the petition, this Court observed in the later part F

of the order the petitioner's conduct in his persistence to stand by the scandalous avcrments n1a<le against the learned Chief Justice of lndia. This Court \Vas constrained to initiate contempt proceedings and enlisted 14 instances which would plin1a facie constitute contumacious conduct of the petitioner to scandalise the Court. In the meanwhile, the petitioner wrote G in a ne\vspaper criticising Justice J.S. Verma. Resultantly, Justice J.S.

Verma rcclused himself from the Bench. Thus the matter was posted hefore this Bench.

On April 12, 1996, the petitioner filed his reply to the show cause notice styling the .same as

11prcliminary .submissions'' and reiterated his H

A avermcnts, which, as pointed by this Court, would constitute scandalisation of the Court and yet he had given his Justification for accusing the Chief Justice of India. However, at the end, as a foot-note, he has wriqen in his own handwriting as under :

"N.B. If some passages seem strindent or pungent, the defendant is willing to suitably modily them."

On April 14, 1996, this Court passed the order as under :

"Pursuant to the notice issued by this Court the Contemnor Dr.

D.C. Saxena is present today in person. He has stated that he would modii)r the offending portions noted in the sho\v cause notice in Item (ii), (iv), (vi), (vii), (viii), (x), (xii), (xiii) and wishes lo withdraw unconditionally item (xiv), paras B and C.

The learned Solicitor General has pointed out that even if the Contemnor withdraws or files statement in the modified form what the Court required to do is whether his statements made in the writ petition originally filed constitute contempt or the Court or not and his modification of the above statements would not be of material relevance for consideration. Since the conternnor seeks time to submit the show cause in the modified language which he wishes to place before the Court, at his request the matter is adjourned to May 2, 1996 at 2.00 p.m. The registry is directed to supply complete set of papers to learned Solicitor General."

When the case up for hearing on , May 2, 1996, the petitioner filed amended portions to substitute the averments made, at proper places, in F the second unnumbered writ :ietition. We have heard learned Solicitor General as cnnicus curiae and the petitioner-inperson. Before opening the case. the Solicitor General, in view of the seriousness of the averments made by the petitioner in the petition filed against the Chief Justice of India, and in view of his stand in both the preliminary submissions to the contempt notice an<l the revised avcrments 1nade in the \Vrit petition) G suggested that it would be advantageous for the petitioner to have consultation and legal assistance of any counsel of his choice and to revise his stand, but the petitioner remained silent and got along with the case.

The Learned Solicitor General stated that on July, 17, 1995, the Court had sent for and called upon him to have the allegations made in H the first writ petition, verified and lo place the factual position before tlie

D.C.SAXENAv. HON'IlLEC..1.1.[RAMASWAMY,.l.J 697

Court. Pursuant thereto, on August 7, 1995, he hacl placed the record before the Court which arc confidential in nature. After their perusal and hearing the petitioner, the Court <li<l nllt think it necessary to issue Jirections as sought for. Al this stage, we would point oul that when Sri P.V.

Narasin1ha Rao, as President of Indian National Congress or as the former Prin1e tvfinistcr, \Vas alleged to have used the defence aircrafts, this Court obviously was of the vie\v that the relationship bet\vccn the t \VO \Vin gs of the Ciovcrnrncnt or the political party, i.e., the Indian National Congress is of debtor and creditor and that, therefore, prerogative writ under Article 32 of the Constitution would not lie to enforce contractual dues adjustable as per their practice. The exercise of the power under Article 32 was, therefore, obviously thought to be uncalled for. Supreme Court being the highest judicial forum, the need to record reasons is ohviatc<l since there is no further appeal against the order of this Court. Recording reasons is not, therefore, necessary nor is called for.

The learned Solicitor General, therefore, contended that when the Court dismissed the writ petition, the petitioner, being a professor of D English in Chandigarh University, should have exercised restraint and felt duty-bound not to proceed further in the matter. Instead, he filed the second writ petition with allegations which are ex-facie contumacious. The petitioner reiterated the same in his preliminary submission to the notice of the contempt. His modified statement filed on April 24, 1996 itself is not relevant. What would be material and relevant for consideration is E whether the allegations made against the learned Chief justice of India in the second writ petition do constitute contempt of the Court. The modified stand, therefore, is not relevant to adjudge whether the petitioner has committed of this Court. The Court, therefore, has to consider the totality of the averments and their effect on the judicial process to adjudge the conduct of the petitioner to be contumacious. The petitioner contended F that he did not seek any personal gain for himself. As a duty-bound citizen, he was actuated to see that the public dues are recovered from any person how-so-high he may be. To the best of his understanding, the petitioner made the averments for public good and he has no intention to scandalise the Court. He had approached this Court earlier more than 12 times to vindicate public justice. As a human being, he is fallible but he has no G intention to denigrate the Court to which he has highest respect. His modified language in the statement filed on April 24, 1996 does indicate his intention.

In the proceedings of the Court dated July 17 1995, it was recorded H

A that the Solicitor General lrnd appeared for Sri P.V. Narasimha Rao who

\Vas in1plea<led in his personal capacity. It is the petitioner's contention that the Solicitor General cannot appear for him. He \Vas not assisting the Court as amicus. When the Chief Justice called for the records from the Government through Solicitor General, it is Court's duty lo give him copies of those documents bt•t the s<lme were denied to him. It is his further B contention that even though the petitioner had pointed out the same, Justice AM. Ahmadi was stated lo have observed that the pelitionei could argue the case as if no records had been produced before the Court. If the petition \Vas to be disn1isscd, he has a right to have the reasons given for dismissal of his writ petition. He further argued that whatever comments he has made in the second writ petition, they are plain comments based on C the Court proceedings and as per the law and were for public good. He stands lo gain no personal benefit in the litigation. To the best of his understanding, the petitioner made only relevant allegations based on record and of law with no bad intention. They arc valid defences to him.

The Contempt of Court Act, 1971 (hereinafter referred to as the "Act") is D the legacy of the colonial rule and is ultra vires Article J9(1)(a). All the contentions raised by him need to be decided by a Constitution Bench since they pose questions of consi<lcrablc constitutional importance. The petitioner, therefore, has not committed any contempt of the Court.

With a view to appreciate the respective contentions and to adjudge E whether the petitioner has committed contempt of this Court, it is necessary to extract the relevant portions supplied to him by show cause and his reply thereto and of preliminary submissions and his modified statement as a substitution to the averments made in the second writ petition and the effect thereof. In respect of the averments made in the offending portions of item 1, 3, 5, 9, 13 and 14(a) and (d), the petitioner stood by them. He F submitted his modified statement on April 24, 1996 only for the rest of the statements. Let us first consider the un1nodified averments before cxan1ining the original and the 1nodified avcnnent:s.

The first averment made at page 4 in paragraph 9 is that "it is G improper for Justice Ahmadi lo hear it". Item 3 at page 6 in paragraph 14 is; "To this Justice Ahmadi responded that he (the Solicitor General) was there to assist the Court, contrary to the evidence of the court proceedings''. Item 5 relating lo the averments made in page 6 in paragraph 17 is : "the subsequent course of action by Justice Ahmadi, in dealing with the grouse of the petitioner and dismissing his petition is tota1ly unjust, unfair, H arbitrary and unlawful. It is in flagrant violation of the mandates of Article

D.C. S,\XFNA v. HON"IJLECJ.l. [RAMASWAMY.J.j 699

14 of the Constitution, which "runs like a golden thread" through it and is A the foundation of , iusticc and fair play 11 • ltcn1 9 relating to the aver1nents made at page in parngraph IS(f) is : "What arc the legal consequences of the violation of the sacred oath of office by Justice Ahmadi?" llem 14(a) relating to the prayer portion is : "declare the respondent (Justice A.M.

Ahmadi) unfit to hold office as Chief Justice of India" and item 14( d) is :

' 1Direct the respondent's (Justice .1\.M. Ahmadi's) prosecution under the Prevention of Corruption Act." The petitioner in his affidavit filed in support of the second writ petition has stated in para 2 thereof thus : "! am actuated purely by national interests and no personal gains and have t111thfully and carefully stated the facts (emphasis supplied), in pursuance of my fundamental duties, which can be effectively performed only through the fundamental rights enjoyed as a citizen of India." In his preliminary submissions, he has slated that the writ petition under Article 32 shall be heard by a Division Court of not less than 5 Judges. Emphasis was added by the petitioner himself. Since the writ petition was not listed before a Court competent to dispose of the same, it makes the order of dismissal

non est and it should be deemed to be pending and is "not yet decided and D disposed of constitutionally". No contempt proceedings can, therefore, be initiated. The notice is, therefore, pre-n1ature. Constitution of the Bench by the Chief Justice is in violation of the principles of natural justice as no one can be a Judge of his own cause. Justice "should not only be done but should manifestly and undoubtedly seem to be <lone ........ Nothing is to be done which creates even a suspicion that there has been an improper interference of the course of justice.", he quoted the above statement of Lord Heward, C.J. Regarding Item 1 referred to hereinbefore; he justified the imputation stating that no person can be a Judge in his own cause directly or indirectly. Jn spite of his objection, the respondent (CJ!) chose

F to constitute the bench himself as a presiding Judge. According to the petitioner the word

11improper' 1 , therefore \Vas used in that perspective.

With regard to the averments made in Item 3, his reply was that the Court proceedings dated July 17, 1995 recording that the Solicitor General, Shri Dipankar Gupta appeared in his official capacity to Sri P.V. Narasimha Rao, a private Party, He had stated that even assuming, though not conceding, that he (Solicitor General) was acting as mnicus curiae also was G not recorded in the Court proceedings. Therefore, his comment that CJJ had fabricated false record is fair and an accurate report of the Court proceedings protected under Section 4 of the Act.

With regard to Item 5, he states thus : "This is a reaffirmation of an unimpeachable legal proposition in the most widely-prevalent legal H

A phraseology, lo which no umbrage can be taken, for by this logic all petitions containing this phrase \Voul<l be deemed contemptuous. Even the part of the quotation is from the leading decision of this Hon'ble Court in Maneka Ga11dhi 1s casc.' 1

With regard to avcrmcnts made in item CJ, he justified it stating that B "this again is an unresolved question of great legal significance and he cited as analogy of Mr. Facdul Huq, then Chief Minister of Bengal and quoted a passage from a Special Bench decision of Calcutta High Court in R.C.

Pollard v. Satya Gopal Majunulm; A.l.R. (1943) Cal. 594 (605). He added special emphasis to the words "the clear violation of it brands a man as unfit for public office" and stated that it is a legal question of substantial C importance relating to the violation of oath of office, contained in the Third Schedule of the Constitution and it cannot be disposed of by a three .Judge Bench. It cannot be considered as personal imputation against the .I udge.

With regard to imputation and prayer (a) in item 14, he says that the analogy he had taken from the Calcutta High Court decision. It was a D natural corollary to the legal proposition considered by a Constitution Bench. With regard to prayer ( d) in Item 1.4, he states that this is only a prayer for relief sought. The defence taken in relation to (xiv)(b) and (c) would equally be applicable and so he has reaffirmed them to be correct.

The allegations, therefore, are neither "reckless" nor do they "disclose irresponsibilitjl' (put within inverted comma by a petitioner himself) and is E not "an abuse of the process of the court."

He reiterated that

11Several averments in the writ petition 11 being truthful, factual, and made without rancour or malice and for no personal gain, should not be construed "scandalous" (inverted commas were put by the petitioner himself).

Let us now consider other imputations, in the language of petitioner himself with regard to the "truthfully and carefully" stated facts. Act page 5 in para JO, the petitioner has stated that "Justice Ahmadi's utmost reluctance to pe1fonn his fundanzental duties and constitutional obligations was UJJJJarent,

when aftcrfaililig to browbeat the petitioner, he stated that it would be taken up G at the end of the cause list". In his preliminary submissions he has stated that

11this is a fair and accurate submission of the Court proceedings on matter which had already been "heard and finally decided". (inverted commas were put by the petitioner himself). He sought protection to it, as a fair comment, under Section 4 of the Act. He further justified it stating that even the use of H the word ' 1bro\vbeatn by the petitioner is a

11fair criticism of judicial act

11 (in-

D.C. SJ\XENA 1•. llON'BLF CJ.I. [RAMASWAMY.J.[ 701

vrtc<l con1111a was put by the pct itioncr himclf) to in1ply that proper hearing was not being granted lo the petitioner who had approached the highest Court of the land to "protect and safeguard public property". He justified them as a "statement of truthful facts", for public good should not be construed as disrespect to the Hon'hle Court. After offcringjustification in his 111odificd statement1 be reiterates thus: '1The petitioner discerned reluct; nce on the part of the presiding judge lo allow the relief claimed, which was in public interest, and actuated hy the desire to 1'preserve and protest public property," \Vithout

any personal 1nalice 11 • It \vould, thus, indicate that the petitioner in1puteJ motives to Justice A.M. Ahmadi, Chief Justice India, in the discharge of his constitutional duty and that by not admitting the writ petition or dismiesing the petition, the CJI \Vas reluctant to pcrfonn his constitutional duty. He kne\v C that the \Vord ' 1bro\vbcat 11 is a strindent in1putatio11 to the Court and, therefore, in his modified avcrment, he substituted by the works "discerned reluctance".

Even in the n1odified statement, he attributed n1otivcs to CJJ in the ptrfur- 1nance Jf his constitutional duty \Vhile the Bench that disn1issed the first \Vrit petition consisted of three Judges. By inference, he suggested the other D brother Judges to be mere nun-entity.

With regard to item 4 at page Gin para 15, he imputed to the CJl that

11an<l \vithout recording the reasons for dismissing the petition. So n1uch for the vaunted adherence to the t\vin principles of transparency and accountability.'' In his prli1ninary submissions, he has given justification for his attributing motives to CJ! stating that the Solicitor General handed over some documents to the bench, without suppl)ong the copy thereof to the petitioner.

When he had objected to it in his own language, he avers that ''Justice Ahmadi asked him to argue on the supposition that nothing had been given to the bench. In view of this, reference has been made to the "twin principles of transparency and accountability \vhich 1', according to the petitioner,

1'is a fair

and accurate report of court proceedings, which is also for the "public good." (inverted commas were put by the petitioner himself). In the modified statement he stated thus : "That J usticc Ahmadi ultimate! y dismissed the petition, observing that the Government of India was capable to realise the dues from G Shri Rao (which it had not done in two years) and without recording the reasons for dismissing the petition, for which lapse it has often berated High Courts, in pursuance of the twin principles of tranarency and accountability". It would, thus, be seen that as regards this imputation, the petitioner givesjuslification that there \Vas omission lo record reasons for dismissal of the writ petition; he imputed to CJ! that the CJ! facilitated Sri NarasimhaRao H

7112 SUPRlME COURT REPORTS [ l'J%J SUPP. 3 S.C.R.

A avoid pay1nent of public <lue~. The act of the Court \Vas not transparent. According to the petitioner) it is a lapse on the part of the Court for \vhich the

(ourt conduct) by in1plic<Jtion, \Vas not transparent and the Court n1ust he accountable.

B Hcn1 6 at page 7 in p<iragraph LS( c) reads thu:;:

1'For causing fabrication nf courts proceedings of 7th August, 1995, and nol mentioning the fact of appearance of the Solicitor Cicncral, would Justice Ahmadi not he liable to prosecution under the rclcYant provisions of the Indian Penal Code in consonance with the timehonoured 1naxin1, "Be you ever ::; o high, the hnv is above you ?" (inverted commas \Vere put by the petitioner hin1sclf). In his prelin1i- C nary subn1ission~, he stated that ' 1Although some\vhat unhappily\vordetl, it is one of the substantial questions of law, which needed lo be determined by the Constitution Bench of the apex court''. According to him, above maxim is one lo which this Court has repeatedly staled to have avowed allegiance. In his n1odified version, he stated thus: ' 1For inaccurate recording of the court D proceedings of7 August, 1995 and not mentioning even the fact of appearance of the Solicitor General for the respondent, what responsibility would ensue on the presiding judge, wbo dictated them ?"It \VOuld, therefore, in the language of the petitioner, be "discernible" difference of the imputation as originaJly n1ade in the \Vrit petition and reiterated in his preliminary submissions and its impact was understood bylhe petitioner. Therefore, he made the E amended version imputing responsibility to Justice Ahmadi personally for the so-called inaccurate recording of the Court proceedings and stated that the CJ! should be prosecuted for the recorded said to he falsely recorded by CTI after fabrication and it is a fraud and CJI is liable for prosecution for fraud etc.

F Item 7 al page 6 in paragraph 18( d) reads thus : "Can Justice Ahmadi be allowed to lake shelter behind the cloak of the judicial immunity, in the facts and circumstances of the instance case, particularly when unlike the President of India, \vho cannot be impleadcd in civil or crintinal proceedings

11<luring his term of office,' 1 CJI enjoys no such constitutional protection ? 11 In G his prelirninary submissions, he stated that this is yet another constitutional conundrum which needed to be resolved by a Constitution Bench of the Hon'ble Court under Article 145(3) read with Supreme Court Rules.According to the petitioner "Crucial to it are "the facts and circumstances" (inverted commas were put by the petitioner himself) spelled out earlier", implicitly conferring imn1unity on the Congress President, Sri P.V. Narasirnha Rao, H from paying lh" heavy dues that he owed to the national exchequer and thus

... '

D.C. SAXENA v. IION"IJLE CJ.I. [RAMASWAMY,.!.] 703

the Court treated him as a class to which the laws of the land do not apply. ls this not a negation of all that the Constitution holds sacred?" In the modified version, he st<tcd thus

11When under the Constitution .I udges of superior courts do not, unlike the President of India, enjoy total immunity, during their term of office, can the presiding judge, be allowed lo make such a claim for wrong-doing'" (Emphasis supplied). He, thus, imputed to the Chief J ustiee of India, Justice Ahmadi motives that CJ! allowed Sri Narasimha Rao, Congress President, to avoid payment of dues causing loss to the national exchequer treating him as a class by himself and the CJ! neglected to perform the constitutional duty which he holds sacred which is a wrong-doing. Therefore, Chief Justice of India should not be allowed to take judicial immunity and is liable to crin1inal prosecution even during his term of office as CJI.

ltemS of the imputation al page 7 in para 18( e) reads thus: "For willfully

and adve11cntly violating (emphasis supplied) the fundamental rights of not only the petitioner as an individual, but that of the people of India, who arc ultimately sovereign, as stated in the Preamble to the Constitution, has not D Justice Ahmadi forfeited any legal protection, even if it were available to him

? 11 In his preliminary submissions, he ha.s stated that

11That first part of the sentence is based on the implicit constitutional provisions and in fact shows that the petitioner/defendant looks upon the apex court as the guardian of his fundamental rights and those of the voiceless millions. The second part raises a constitutional question, which needed determination by an appropriate bench. 11 Jn the amended version, he reiterated that

11for violating the fundamental rights of not only the petitioner, as an individual, but also that of the people of India, who are the ultimate sovereign, as stated in the Preamble to the Constitution, has not J usticc Ahmadi sent wrong signals to the entire judiciary of which he is the head". In this paragraph, it is clear that the petitioner knew the distinction between the imputation as originally attributed to the Chief Justice oflndia as H cad of the Institution, i.e., Judiciary and reiterated in his preliminary submissions that CJ! "willfully" and "advertently" violated the petitioner's and people's fundamental right to redressal by

wongful dismissal of the writ petition. He knew its indelible effect on the public confidence in the efficacy of judicial dispensation and propriety of the

judicial process. When they read the imputation, he attributed to the Chief Justice that CJ! willfully and adve1tently violated the fundamental rights of the. petitioner and other people in dismissing the writ petition. Thereby, Justice Ahmadi forfeited legal protection of law, if it were available to him and he slated in his modified version that the action of Chief Justice of India sent H

SUPREME COURT REPOR1S !1996] SUPP. 3 S.C.R.

A \Vrong signals to the entire judiciary of \vhich he is the head. In other \Vords, it would imply that CJJ as Judge and as head of the institution committed misconduct.

Imputation 10 made at page 8 in paragraph 18(g) reads thus: "For <lclibF.ratc an<l \villf ul failure to pcrf orm his fun<larncntal duties and stultifying their performance by the petitioner, should not Justice Ahmadi be stripped of his citizenship, because duties alone can confer the corresponding legal and constitutional rights?" fn his preliminary submissions, he has slated that this is also a constitutional question needed to be interpreted on the ambit and enforceability of fundamental duties in Article 51-A; it should not be con- C siclcrc<l by a Division Bench.

11Morcovcr, this is a logical corollary of the forl..!going que!-.tion of la\v. It i~ respectfully reiterated that a question of law is not a personal irnputation or insinuation.'' In his modified version, he has stated thus: "For failure lo perform his fundamental duties and impeding their performance hy the petitioner, 'hould not .Justice Ahmadi be regarded D as accountable to the people of India, because duties alone can confer the cor~

responding legal and constitutional rights ? 11 In this behalf, it is clear that the petitioner is \Veil conversant \Vith the effect of

11a person<Jl imputation and the negation". He attributed that .I us lice Ahmadi, Chief .I ustice of India deliberately and willfully failed lo perform his fundamental duties by dismissing the first writ petition and stultified the performance of the duty by the petitioner.

E Thereby Justice Ahmadi "be stripped of his citizenship''. He also knew that for exercise of legal or constitutional rights one owes corresponding duties. The person who fails lo perform the duty is accountable to the people. 0 l willfully, in other words, deliberately with supine indifference dismissed the writ petition. OI does not get legal protection but also forfeits his citizenship.

Imputation 11 at page 8 in paragraph 18(h) reads thus : "For allowing his son who is a practising in the Supreme Court, to stay with him in his official residence, and presumably misusing official facilities and prestige of office of ChiefJustice oflndia, is not Justice Ahmadi liable to be prosecuted under the G Prevention of Corruption Act, in viev.' of the ratio decidendi of Veeraswa111i 's case ? 11 In his preliminary submissions, he reiterated that this is a question of law based on informati.on he had received from "public documents" (inverted commas were put by the petitioner himself) from an article which was said to have appeared in "India Today", with Justice Ahmadi's photograph and yet another one said to have been published in "The Times oflndia'', authored by H a woman Senior Advocate of this Court. He states that "It is widely talked in

0.C. SAXENA v. HON'BLE CJ.I. [RAMASWAMYJ.] 705

legal circles that apart from being favoured in appointment on local commis- A sions (by the Delhi High Court) JusticeAhmadi's son (and daughter also) are very often assigned government bricfs 11 • Jn support of his imputation, he seeks justification from the observation made by this Court in C. Ravichandran Iver

v. Justice A.M. Bhattachmjee & 01:<., [ 1995] 5 SCC 457 of transparency of the conduct of the Judge on and off the Bench. He further added that "the criminal contempt application of one M.P. Shorewala against the petitioner/defendant was got filed and in gross violation o[ statutory provisions (mentioned in the office report) was got listed next to the petitioner's ci\l \Vrit petition on the same day, Le., 30th January, 1996 for reasons which need no dilation". The petitioner had not modified in his modified version, though he undertook to do so. He stood by the above im- C

putati~1 as reiteration \Vith further justification in that.behalf n1ad~ in his preliminary subn1issions. We n1ay obscrYe here itself that tlie personal in1putation against the Chief J usticc of India, Justice Alunadi of alJo, ving his son to pr<Jctise in t.hc Suprcn1e Court is false. His pcnnitting his son to reside in

hi~ official residence said to be in abuse of his official position has no D relevance to the first \Vrit petition rchiting to lhc recovery of the alleged arrCars said to be due fron1 Sri P.V. Narasin1ha Rao. During the course of hearing, \Vhen it \Vas pointed out to the petitioner that as a fact the son of J usticc .A.hn1adi is not practising in the Supreme Court and that the above in1putation has no rational connection to the first \Vrit petition and of the necessity to allege them in the second one, no ans\ver \Vas given by the petitioner. He sought E to justify it on the basis of the reports said lo have been published in the newspapers. When we further inquired from him whether he made any independent inquiry in the matter or_ on the accuracy of the nc\vspaper publications, he stated that he relied upon the above staten1ents as an accurate statement of fact reported therein. We may mention that this imputation has F no relevance to the first proceedings. As a fact, the son of Justice Ah1nadi is not practising in the Supreme Court. The alleged facility of permitting his son to stay in his official residence bears no relevance to the proceedings. Theimputations were obviously off the cup.

Imputation 12 made at page 8 in paragraph 18(i) reads thus: "Is Justice Ahmadi not liable to pay from his pocket not only the legitimate costs incurred by the petitioner in C.W.P. No. 432of1995 and the present petition, but also

the loss caused to the public exchequer by non-payment of dues with 18% interest by Shri P.V.N. Rao ? 11 In his preliminary submissions he reiterated it giving further justification thus : "This is the law laid down by this Hon'ble H

A Court in relation to public servants. Whether it is also applicable to holders of constitutional office or not is a substantial question of law, which should have been answered by a Constitution bench." In his modified version he has stated thus : "who would be liable to reimburse the legitimate costs incurred by the petitioner by filing C.W.P. No. 432of 1995, and the present petition and

B the huge loss caused to the public exchequer because of the persistent default

in paying them by P.Y. Narasimha Rao, with 18% interest?" It would, thus, be apparent that for dismissal of the writ petition filed by a party, by a judicial act, the presiding Judge of the Court is liable to pay costs to the litigant and also the resultant loss to the public exchequer for non-payment of the dues by the defaulter with interest. He justified it stating that when a public servant C causes loss to the State and the same is sought to be recovered from him, why not the constitutional functionary for Judicial act is also liable to pay "er the same. In other words, if the Court dismisses a petition filed by a litigant, the resultant costs must be borne by the presiding officer of the Court. Equally, the loss caused to the State should also be recoverable from the presiding D Judge from his personal pocket.

Regarding imputation 13, though he stated that he wished to make n1odification to it, in his an1cnded version, he did not touch upon the sa1nc.

In1putation 13 at page 8 reads thus: "Since no person can be a judge in his O\Vn cause, the senior-n1ost judge of the Hon'b]e Court 1nay be permitted to con- E stilute a constitution bench, for expeditious hearing of the petition excluding any Judge \vho O\Ves his elevation to the apex court to Justice Ahmadi. Further during its pendency, .Justice Ahmadi may be advised to proceed on leave, so that he may not directly or indirectly inlluence any of the judges hearing the matter.' 1 In his preliminary subn1ission, he reiterates that

11The prayer is in F strict conformity with the maxim cited earlier in the words of Lord Heward, C..J.'' He justified it on the basis ofJustice P.N. Bhagwati (as he then was), the senior-n1ost Judge's presiding over P.S. Gupta's case, i.e., First Judges case \Vhen Justice (:11andrachud \Vas imputed \Vith some allegations. He also justified his quoting the a<lvicc given to .Justice V. Ran1as\vami to proceed on leave when enquiry was pending against him under the Judges (Inquiry) Act.

G It would be seen that in this imputation, he categorically asserts and relics that

.I us ti cc Ahmadi, Chief.I ustice oflndia would bring about inlluence directly or indirectly upon his colleagues when the matter was to be heard. While he is in the office, he also should not function as Chief Justice pending his second writ pctitiqn. C.TI also should not constitute any benches. That should done by the H senior-most puisne Judge. Any .Judge appointed lo this Court during his

D.C. SAXENA v. llON'BLECJ.J.[RAMASWAMYJ.] 707

tenure as CJ! should not hear the case as CJ! directly or indirectly would inllucnce them when Lhe case relating to hin1 \Vas dealt \Vi th. fn other\vords, his iinputation is that J udgcs appointed to the Suprcn1c Court during the tenure of Justice A.M. Ahn1adi as CJl, are a1nenable to influence in deciding the

cases al the behest ur the CJ! as they owe their appointments to him. In other \Vords, as soon as a \Vrit petition under Article 32 or petition under Article ]36

was filed attributing motives or bias to the CJI (it would equally apply to any Judge) he should desist to perform judicial and administrative work. He should proceed on leave till that case is decided. The senior-most puisnc

Judge should assume the work of the CJ!.

Imputations in Prayer (b) and (c) read as under:

"(h) strip the respondent (Justice A.M. Ahmadi) of his citizenship"; and (c) Direct the registration of an FIR against the respondent (Justice A.M. Ahmadi) under the Indian Penal Code for

con1n1itting forgery and fraud."

In his prclin1inary subn1issions, he has staled \Vi th regard to stripping ol --itizcnship of CJ I that "this n1ay have been the consequence of the constitution hench affirn1ing the vie\V taken by the Calcutta High Court cited earlier.

Moremcr, this is only a prayer for relief sought, which does not fall within the mischief of the Contempt of Courts Act." With regard lo prayer ( c) he states thus: "the plea taken in relation to (xiv)(b) (supra) is affirmed." In other words, he is affirming his stand with regard to the iinputation l4(b). Now, in the modified statement, he seeks to withdraw them and states "May kindly be treated as deleted". It would, thus, be clear that his asking for stripping of the

citizenship of the Chief Justice or India is for dismissing his \Vrit petition and prosecution is the consequence of a decision of this Court \Vhich had affirmed the judgment of a special Bench judgment to the Calcutta High Court in Fazalul Haq's, Chief Ministc1; BenJial's case.

At this stage, it may he relevant to mention that the petitioner) either in

his prelin1inary submissions or modified version filed on April 24, 1996) during the Course of hearing, did not tender any unconditional apology for G the imputations made against CJJ. On the other hand, it is clear that being a professor of English, he knc\vthe consequences of the language used, its purpose and effect and pressed for consideration. At the time of Uisn1issing the second writ petition to a pointed reference of the allegations to be scandalous, it \Vas recorded in the order and there \Vas no demur from the petition to the H

A contra, that the petitioner stood by them. In other words, he would bear the consequences that would flow therefrom. According to the petitioner, many an imputation bearing constitutional contour require interpretation by a bench of five Judges under Article 145(3). We need not refer the case to the Constitution Bench merely because the petitioner has raised that contention

B in the petition; nor same requires decision unless the Court finds that the petition cannot be disposed of without the questions being decided by the Con.- stitution Bench.

When imputations were made against the Chief Justice, the petitioner assumed, in our vic\v, '\vrongly" that CJI cannot constitute benches nor he C should discharge the functions of Chief Justice until the Matter is decided. On

appointn1cnt by the President by a \Varrant an<l on his taking oath of office, the C.ll becomes entitled to discharge the functions and duties of that office including constitution of benches and assignn1ent of judicial \Vork to judges as per procedure. This responsibility flows from the office and none including a D litigant hc1.s right to denian<l for contra position. As regards his personal disposition to hear a case by a bench of \vhich he is a member, it is his O\Vn per- :;, onal volition. The Chief Justice's prrogativc to constitute benches and assignn1ent of judicial business \vould not hin!!c at th8 \vhim of a litigant.

The decisioos of different benches arc the decisions of the Court. For E the convenient transaction of business, the senior Judge among the 1nembers composing the Bench gets the privilege to preside over the Bench but the decision is that of the Court. The members composing the Bench collectively speak for the Court and would bear collective responsibility for the decision unless separate opinions are expressed by individual members composing the F Bench. Majority opinion is the law as envisaged uoder Article 145(5) of the Constitution. Their opinion or orderthus is the opinion or order of the Court.

The minority opinion also would form part of the judgment or order but remains the minority view. The Chief Justice is first among the colleagues.

The question, thercf orc, arises: \Vhether the afore-enumerated imputa- G tions constitute contempt of this Court'/ Though the petitioner contended that the provisions of the Act are ultra vires Article 19(l)(a) of the Constitution, it is not necessary for the purpose of this case lo dwelve upon that contention. This Court has taken sou motu cognizance of contempt of this Court under Article 129 of the Constitution of India which reiterates as a court of H record, its power to punish for contempt of itself. As pointed out in the

D.C. SAXENA v. HON'BLE CJ.I. [RAMASWAMY, J.] 709

proceedings of this Court dated January 13, 1996, in spite of the fact that this Court brought to his attention the gravity of the imputations, the petitioner insisted and reiterated that he stood by the scandalous averments made therein. This Court being duty bound. \Vas, therefore) constrained to issued notice of contetnpt. The question, therefore, is: \vhether the aforesaid imputations arc scurrilous attack intended to scandalise the Court and do they not impede due administration of Justice? Words are the skin of the language. Language in \vhich the \Vor<ls are couched is media to convey the thoughts of the author.

Its effect would be discernible from the language couched prop1io vi gore. The petitioner, a professor of English language in clear and unequivocal language e1nphasised and rcaffirn1ed that the averments \Vere

11truthfully and carefullyrr worded. The question is : to what extent the petitioner is entitled to the freedom of those expressions guaranteed under Article J 9(1 )(a) of the Constitution ? If they arc found scandalous, whether he would get absolved by operation of Article 19(l)(a) ?. As this Court has taken suo motu action under Article 129 of the Constitution and the word 'contempt' has not been defined by making rules, it would be enough to fall back upon the definition of "criminal contempt" defined under Section 2( c )of the Act which reads thus:

"ncrin1inal contcrnpC' n1cans the pubhcation. (\vhcthcr by words, spoken or ivritten, or by signs, or by visible representations, or otherwise) of any matter of the doing of any other act whatsoever 1vhich -

(i) scandalises or tends to scandalise, or lowers or tends to !oiver the autholity of any cou1t; or

(ii) prejudices, or interferes or tend~ to interfere \\'ith, the due course of any judicial proceedings; or F

(iii) i11te1feres1 or tends to inte1fere with, or obslnlcts or tends to obst11tct1 the ad111inistration of justice in any other n1anncr. 11

(Emphasis supplied) G

It is doubtless that freedom of speech and of expression guaranteed by Article 19(1 )(a) is one of the most predous liberties in our secular, socialist republic, freedom of expression is a prized privilege to speak one's open mind although not always in prefect good taste of all institutions. Since it opens up channels of open discussion, the opportunity of speech and expression should H

A be afforded for vigorous advocacy, no less than abstract discussion. This liberty may be regardsd as an autonomous and fundamental good and its value gets support from the need to develop our evolving society from unequal past to a vigorous homogeneous egalitarian order in \vhich each gets equality of status and of status and of opportunity; social, economic (:Ind political justice \vith

B dignity of person so as to build an integrated and united Bharat. T'ransfonnation for that strong social restructure \Voukl be secured \Vhen channels for free discussion arc \vide open and secular mores are not frozen. AI1 truths are relative and they can be judged only in the competition of market. Liberty is not to be equated with certainty. Freedom of expression equally generates and disseminates ideas and opinions, information of political and social i1npor- C lance in a free niarket place for peaceful social transformation under rule of

hnv. The doctrine of discovery of truth docs require free exchange of ideas and use of appropriate language. Words are the skin of the language \Vhich manifests the intention of its maker or the speaker. The right to free speach is, therefore, an integral aspect of right to self-development and fulfilment of D person's duties some of which are proselytised in Part IVA of the Constitution

a-s Funda1ncntl:1l Duties. The end of the State is to secure the the citizen~ freedom to develop his faculties, freedom to think as he will, to speak as he thinks and read as indispensable tools to the discovery of truth and realisation of human knowledge and human rights. Public discussion is political liberty.

The purpose of freedom of speech is to understand political issues so as to E protect the citizens and to enable them to participate effectively in the working of the den1ocracy in a representative forn1 of Government. Freedon1 of ex~ pression \vould play crucial role in the formation of public opinion on social,

political and econon1ic questions. Therefore, political speeches are greater degree of protection and special and higher status than other types of F speeches. and exprec.sions. The importance of speaker's potential development on political and social questions is also relevant to encourage human development for cilectivc functioning of democratic institutions.

Equally, debate on public issues would be uninhibited, robust and wide open. It may \vell include vehement, sarcastic and sometimes unpleasant G sharp criticism of Govern111ent and public officials. Absence of restraint in this area encourages a well informed and politically sophisticated electoral debate to confor111 the Govern1nent in tune with the constitutional mandates to return a political party to power. Prohibition of freedom of speech and expression on public issues prevents and stifles the debate on social, political H and economic questions which in long term endangers the stability of the com-

D.C.SAXENAv. HON'llLECJ.1.[RAMASWAMY, J.] 711

munity and maximises the source and breeds for more likely revolu•.ion.

If maintenance of democracy is the foundation for free speech) society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious, viz., that society accepts free speech and cxpn.::ssion and also puts limits on the right of the majority. Interest of the people

involved in the acts of expression should be looked al not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has lcgiti1nate interest, therefore, to regulate the freedom of speech and expression which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libelous speech or expression. There is a co-relative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody

has a right to denigrate others' right to person or reputation. Therefore, frccdon1 of speech and expression is tolerated so long as it is not malicious or D libelous so that all attempts to foster and ensue orderly and peaceful puhlic discussion or public good should result fron1 free speech in the market place.

If such speech or expression \Vas untrue and so reckless as to its truth, the speaker or the author does not get protection of the constitutional right.

Freedom of speech and expression, therefore, would be subject to Article 19(2), 129 and 215 of the Constitution, in relation to contempt of court, dcfan1ation or incitement to an offence etc. Article 3 read with Article 19 of

the Universal Declaration of Human Rights grants to everyone liberty a.1d right to freedom of opinion and expression. Article 19 of the International F Covenant on Civil and Political Rights, 1966 to which India is a signatory and had ratified, provides that everyone shall have the right to freedom of expression, tu receive an<l impart information and ideas of all kinds but clause (3) thereof imposes corresponding duty on the exercise of the right and responsibilities. lt may, therefore, be subject to certain restrictions but these shall only be such as are provided by law and arc necessary for the respect of life G and reputations of others for the protection of national security or public order or of public health or moral. It would thus be seen that liberty of speech and expre_ssion guaranteed by Article 19(1)( a) brings within its ambit, the corresponding <luty and responsibility and puts limitation:-; on the exercise of that liberty.

A citizen is entitled to bring to the notice of the public al large the inlirn1ities fron1 which any institution includingjudiciary suffers from. Indeed) the right to offer healthy and constructive criticism \Vhich is fair in spirit n1ust be left uni111paired in the interest of the institution itself. Critics are instrun1cnts of reform but not those actuated by matice but those who are inspired by public weal.Bona fide criticism of any system or inslitutionincludingjudiciary is aimed at inducing the a<lministration of the system or institution to look_inward and improve its public image. Courts. the instrumentalities of the Stale

are subject to the Constitution and the laws and arc not above criticism. Healthy and constructive criticism arc tools lo augment its forensic tool!-> for in1proving its functions. A harmonious blend and balanced existence of free C speech and fearless justice counsel that la\v ought tn be astutL: to critici:-1n1.

Constructive public criticisn1 even if it slightly oversteps its limits thus ha~ fruitful play in preserving democratic health of public institutions. Section 5 of the Act accord~ protection to such fair criticisn1 and saves fron1 conten1pt of court. The best way to sustain I he dignity and respect for the office ofjudgc D is to deserve respect from the public at large by fearlessness and objectivity of the approach to the issues arising for decision, quality of the judgn1cnt, restraint, dignity and decorun1 a judge observes in judicial conduct off and on the bench and rectitude.

InP.N. Duda v.P. Shiv Sha11ke1; AIR (1988) SC 1208 this Court has held E that administration of justice and judges are open to public criticism and public scrutiny . .I udgcs have their accouotability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to defend and uphold the Constitution and the laws without fear and favour.

Thus the judges n1ust do, in the light given to them tO detern1inc, \vhal is right.

Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the .iu<lges and brings adn1inistration of justice to ridicule nlust he preventL:d.

The conten1pt of court proceedings arise out of that atten1pt. J udgn1cnts can be criticised. Motives to the judges neeJ not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is G one of the pillars on \vhich den1ocratic institution functions and sustains. In the free market place of ideas criticism about the judicial system or judges should be welcome so long as such criticism does not in1pair or ha1npcr the a<ln1inistration of justice. This is ho\V the courts should exercise the po\vcrs vested in them and judges to punish a person for an alleged contempt by H taking notice of the contempt sou motu or al the behest of the litigant or a

D.C. SAXENA 1•. HON'BLECJ.L [RAMi\SWAMYJ.] 713

la\\yer. ln that case the speech oft he La\v Miqistcr in a Se1ninar organised by A the Bar Council an<l the offending portions therein were held not contcn1ptuous and punishable under the Act. In a den1ocracy judges and courts alike are, therefore, subject to criticisn1 and if reasonable argument or criticistn in respectful language and t.cmpcrcd \Vith moderation is offred against any judicial act as contrary to la\v or public good no court \vould treat B criticis1n as a contempt nf court.

Advocacy touches and asserts the primary value of freedom of exprcssi0n. It is a practical manifestation of the principle of freedom of speech which holds so <lcar in a democracy of ability to express freely. Freedom of expression produces the benefit of the truth to emerge. It aids the revelation of the C niistakes or bias or at times even corruption. It assists stability by tempered articulation of gr.ievanccs and by pro1noting peaceful resolution of conflicts.

Frccdon1 of expression in arbrumcnts encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection of D other fun<la1nental hun1an rights. Legal procedure illuminates ho\V free speech of expression constitutes one of the n1ost essential foundations of <lc1nocratic society. Frccdon1 of expression, therefore, is one of the basic conditions for the progress of a<lvocacy and for the devclopn1ent of every tnan including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the n1aintenance of free society. lt is essential to the E rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. As stated hereinbefore, they equally owe countervailing duty to maintain dignity, decorum and order in the Court proceedings or judicial process. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations F against any institution, much less the judiciary.

In E.M.S. Namboo<lilipad v. T. Narayanan Nambiar, f1971J l SCR 697 a Bench of three Judge had held that the law of contempt stems from the right of a court to punish, by imprisonn1ent or fine, persons gui1ty of words or acts which obstruct or tend to obstruct the administration of justice. This right is G exercised in India by all courts when contempt is committed in facie cwiae by the superior courts on their own behalf or on behalf of courts subordinate to them, even if committed outside the courts.

Scandalising the judges or courts tends to bring the authority and ad- H

A ministration of ht\V into disrespect and disregard and tantainounts to co11tcmpl. All acts which bring lhe court into disrepute or disrespect or which offend its dignity or.its majesty or challenge its authority, constitute contcn1pt con1111ittcd in respect ofsingl~ juJge or single court or in certain circu1nstances committed in respect of the whole of the judiciary or Judicial system.

B Therein the criticisra by the Chief Minister \Vho described judiciary as an instrument of oppression and the judges as guided and dominated by class haired, class interest and class prejudices etc. was held to be an attack upon judges calculated to give rise to a sense of disrespect and distrust of all Judicial decisions. II was held that such criticism of authority of the law and law courts constituted contempt of the court and lhe Chief Minister was found guilty C thereof.

The contempt of court evolved in common la\V jurisprudence \Vas codified in the form of the Act. Section 2(c) defines "criminal contempt" which has been extracted earlier. In A.M. Bhattacjarkee's case (supra) relied D on by the petitioner himself, a Bench of two Judges considered the said definition and held that scandalising the court would mean any act done or writing published which is calculated lo bringthe court or judges into contempt or the lower its authority or to interfere with the due course of justice or the legal process of the courl. In para 30, it was stated that scandalising the court is a convenient way of describing a publication which, although it docs not relate E to any specific case either past or pending or any specificJudge, is a scurrilous attack on the judiciary as a whole, which is calculated to undermine the authority of the courts and public confidence in the administration of justice.

Contempt of court is to keep the blaze of glory around the .iudiciary and to deter people from attempting to render justice contemptible in the eyes of the

 F public. A libel upon a court is a reflection upon the sovereign people thems~], ves. The contemn or conveys lo the people that the administration of justice is weak or in corrupt hands. The fountain of justice is tainted. Secondly, the judgments that stream out of that foul fountain is impure and contaminated.

In Halsbury's Laws of England (4th Edn.) Vol. 9 para 27 at page 21 on the topic "Scandalising the Court 11 it is stated that scurrilous abuse of a judge or G court, or attacks on the personal character of a judge, are punishable contempt. The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject tu the jurisdiction of the court, from the H mischief they will incur if the authority of the tribunal is undermined or imo_c_ SAXENA v. llON'BLECJ_[_ [RAMASWAMYJ.] 715

paired. In consequence, the court has regarded \Vith particular seriousness al-

, A, legations of partiality or bias on the part of a judge or a court On the other hand, criticisn1 of a judge's conduct or of the conduct of a court, even if strongly \vor<le<l, is not a contempt provided that the criticism is fair, tc1nperate and n1adc in good faith, and is not directed lo the personal character of a judge or the impartiality of a judge or court.

Therefore, it is of necessity to regulate the judicial process free from fouling the fountain of justice to ward off the people from undermining the confidence of the public in the purity of fountain of justice and due ad- 1ninistration. Justice thereby remains pure, untainted and unimpeded. The punishment for contempt, therefore, is not for the purpose of protecting or vindicating either the dignity of the court as a whole or an individual judge of the court from attack on his personal reputation but it was intended to protect

the public who are subject to the jurisdiction of the court and to prevent undue interference with the administration of justice_ If the authority of the court remains undermined or impeded the fountain of justice gets sullied creating D distrust and disbelief in the mind of the litigant public or the right-thinking public at largefor the benefit of the people. Independence of the.judiciary for due course of administration of justice must be protected and remain unin1paired. Scandalising the court, therefore, is a convenient expression of scurrilous attack on the n1ajesty of justice calculated to undermine its authority and public confidence in the administration of justice. The malicious or slcndcrous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them. If the people's allegiance to the law is so fundamentally shaken it is the most vital and most dangerous obstruction of justice calling for urgent action. Action for contempt is not for the protection of the Judge as private individual but because they arc the channels by which justice is administered to the people without fear or favour. As per the Third Schedule to the Constitution oath or affirmation is taken by the Judge that he

will duly and faith[ ully perform the duties of the office to the best of his ability,

knowledge and _judgment without fear or favour, affection or ill-will and will G so uphold the Constitution and the laws. In accordance therewith, judges must always remain impartial and should be known by all people to be impartial. Should they be imputed with improper motives, bias, corruption or partiality, people will lose faith in them. The judge requires a degree of detachment and objectivity which cannot be obtained, if judges constantly are required to look over their shoulders for fear of harassment and abuse and H

SUPHFME COURT REPORTS 11990] SUPP. 3 S.C.R.

A irresponsible demands for prc1:-.ecution or n; signation. The \Vhoic adn1inistralion ofjuslicc would suffer due lo ils rippling effect. It is for this reason lhal scandalising the judge~ \Vas considered by the Parliament to he conten1pt of a court punishable with in1prisonmcnt of line.

B Scandalising the court, therefore. \Vould ini.::an hustnc cnuc1srn of judges as judges or judiciary. Any personal attack upon a judge in conncclion with office he holds is dealt with under law of libel or slender. Yet defan1atory publication concerning the judge as a judge brings the court or judges into conten1pt, a serious i1npcdi111ent to justice and an inroad on majesty of justice. Any caricature of a judge calculated to lo\ver the dignity c of the COUrl \VOUld destory, undern1inc Or fend to undermine public Confidence in th adn1inistration of justice or majesty of justice. It \voulcl, therefore, be scandalising the judge as a judge, in other \Vords, i1nputing

partiality, corruption, bias, i1nproper niotives to a Judge is scanJalisation or the court \Vould be contempt of the c.ourt. Event i1nputation of lack of D i1npartiality or fairness to a judge in the discharge of his official duties

a1nounts to cnntcmt. The grava1nen of the offence is that of lo\vering his dignity or authurity or an affront to niajcsty of justice. When the contemnor challenges the authority of the Court, he interferes with the performance of duties of Judge's office or judicial process or administration of justice

E or generation or production of tendency bringing the judge or judiciary into conten1pf. SecUon 2 (c) of the Act, therefore, defines crin1inal con templ in wider articulation lhal any publication, whether by words, spoken or written, or by signs, or by visible representations or othcr\vise of any matter or the doing of any other acl whatsoever which scandalises or tends to scandalise, or Jo, vers or tends to Jo\ver the authority of any court; or F prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of .iusticc in any other manner, is a crin1inal contc1npt. rhereforc, a tendency to scandalise the Court or tendency to lower the authority of lhe coun or tendencr"to interfere with or tendency to obstruct the administration of justice in ai{y manner or tendcn~ G cy to challenge the authority or majesty of justice, would be a criminal conlempt. The offending act apart, any tendency if it may lead to or lends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency lo bring the judge or court into contempt or tends to lower the authority of the court H would also be contempt of the court.

D.C. SAXENA v. HON"BLE CJ.I. [RAM/\SWAMY..1.J 717

It is true that in an in<lict<Jble offence generally n1ens rea is an essential A ingredient and requires to be proved for convicting the offender but for a criminal conten1pt as defined in Section 2f c) any cnun1cratcd or any other act apart, to create disaffection, disbelief in the efficacy of judicial dispensation or tendency to obstruct adn1inistration of _justice or tendency to lo\ver the authority or majesty of law by any act of the parties, constitutcs criminal con- B tempt. Thereby it excludes the proof of mens rea. What is relevant is that the offending or affornt act produces interference \Vith or tendency to interfere with the course of justice. At this stage~ we \Voul<l dispose of one of the serious contentions repeatedly emphasised by the petitioner that he had no personal gain to seek in the !is except said to have been fired by public duty and has professed respect for the Court. Those are neither relevant nor a defence for C the offence of contempt. What is material is the effect of the offending act and not the actperse. lnE.M.S. Namboodilipad's case this Court had held in paragraph 33 that a law punishes not only acts which had in fact interfered with the courts and administration of justice but also those \vhich have that tendency, that is to say, are likely to produce a particular result. It was held that the likely D effect of the words must be seen and they clearly have effect of lowering the prestige of the judges and courts in the eyes of people. San1c view was reiterated in Sambu Nath Jha V. Kedar Prasad Sinha, [19'12] 1sec573 at 577.

As stated earlier, i1nputation of corrupt or improper motives in judicial conduct would impair the efficacy ofjudicial dispensation and due protection of the liberties of the citizen or due administration of justice. This paramount E public interest is protected by the definition in Section 2( c) of the Act. It is, therefore, not necessary to establish actual intention on the part of the contemnor to interfere with the administration of justice. Making reckless allegations or vilification of the conduct of the court or the jucle would be contempt.

The question, therefore, to be considered is: whether the imputations referred to hereinbefore have necessary tendency to impinge or tendency to impede the public confidence in the administration of justice or would create disbelief in the efficacy of judicial administration or lower the authority or in- G terferes with majesty of Court ? The court, therefore, is required to consider whether the imputations made by a contemnor are calculated to bring or have the effect of bringing the court into contempt or casting aspersions on the administration of justice tends to impede justice etc. The court has to consider the nature of the i1nputations, the occasion of making the imputations and whether the contemnor foresees the possibility of his act and whether he was H

718 SUPREME COURT REPORTS [1996] SlJPP. 3 S.C.R.

A reckless as to either the result or had foresight like any other fact in issue to be inferred forn1 the facts and circun1stances emerging in the case. The reason is obvious that lhc court does not sit to try the conduct of a judge to \Vho1n the imputations are made. It \vould not be open to the contcmnor to bring for\vard evidence or circun1stanccs to justify or to sho\v \Vhethcr and

B how fairly imputations were justified because the .Judge is not before the

Court. The defence justification to an in1putation \Vould nol, therefore, be available to the contcmnor. The in1putation of improper motives or bias cannot be justified on the principle of fair contempt. lnAmbard v. Attomey- General for T1inidad and Tobago, (1936) AC 322 at 335 Lord Atkin in his oft-quoted judgment held that justice is not a cloistered virtue and must be C allowed to suffer the scrutiny and respectfully, have been, though outspoken comments of ordinary man 11 • But in the sa1ne judg1nent it \Vas further pointed out that provided that members of the public should abstain from imputing in1propcr motives to thoc taking part in the adn1inistration of.iustice Jnd are genuinely exercising a right of criticisn1 and not acting in n1alice or attc1npting D to impair the administration of justice. That \Vas a case of criticisn1 of the Court proceedings as is saved by Section 5 of the Act.

Lav.' is not in any doubt that in a free democracy everybody is entitled to express his honest opinion about the correctness or lcgalit y of a judgment or sentence or an order of a court but he should not overstep the bounds.

E Though he is entitled to express that criticism objectively and with detachment in a language dignified and respectful tone \Vith moderation the liberty of expression should not be a licence to violently make personal attack on a judge. Subject to that, r.in honest criticisn1 of the administration of justice is \Velcon1e since justice is not a cloistered virtue and is entitled to respectful F scrutiny. Any citizen is entitled to express his honest opinion about the correctness of the judgment, order or sentence with dignified and moderate language pointing out the error or defect or illegality in the judgment, order or sentence. That is after the event as post-n1orten1.

G In Siui Baradakanta Mishra Etc. v. The Registrar of 01issa High Cowt &

A111: Etc., [1974] 1 SCC374, the appellant, a District Judge was suspended and

a spate of litigation in that behalf had ensued. When an order of suspension was set aside by the Government, in exercise of his power under Article 235, the High Court further ordered suspension of him pending enquiry of the allegations made against Judges in a men1orandum and letters sent to the H Governor in a vilificatory criticism of the judges in their function on the ad-

D.C. SAXENA v. HON"BLE CJ.I. [RAMASWAMY,].] 719

ministration side. When contempt action was initiated, he challer.gc<l the jurisdiction of the court and the competency to initiate action for contcn1pt on the specious plea that the acts done by the High Court were on the administration side and were not judicial actions. A three-Judge Bench had negatived the plea and convicted the appellant under section 12 of the Act.

When the matter had come up hcfore this Court, a Constitution Bench considered the gravamen of the imputotions and had held that the allegations made against the court in the memo submitted to the Government constituted scurrilous allegations against the High Court. Again some of the allegations made in the 1nemo of appeal and various con1munications lo the Supren1e Court were held to constitute contempt of the court and the conviction was confirmed though sentence was reduced. This Court held that imputation of improper moqves, bias and prejudice constitutes contc1npt under Section 2(c) of the Act.

In Special Reference No. 1of1964, popularly known as U.P.

Legislature's Warrant of Arrest of the Judges of the Allahabad High Court and Keshav Singh Reference, a Bench of seven .T udges of this Court observed that the power to punish for contempt alleged must always be exercised cautiously, \Visely and \Vith circumspection. The best way to sustain the dignity and status of their (judges) office is to deserve respect from the public "t large by the quality of their judgments, fearlessness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct. It would equally apply to the legislature. Keeping the above perspective in view, the question emerges: whether the imputations iten1ised hereinbefore constitute contempt of the court. At the cost of repetition, we may reiterate that in a democracy though every one is entitled to express his honest opinion about the correctness or legality of a judgment or an order or sentence, judges do require degree of detachment and objectivity in judicial dispensation, they being duty bound with the oath of office taken by them in adjudicating the disputes brought before the court. The objectivity or detachment cannot be obtained if the judges have constantly to look over their shoulders for fear of harassment and abuse and irresponsible demands for prosecution, resignation or to refrain from discharging their duties pending G further action. Cognisant to this tendency, the founding fathers of the Constitution engrafted Article s121and211 of the Constitution and prohibited the Parliament and the Legislatures to discuss on the floor of the House the conduct of any judge of the Supreme Court or the High Court in the discharge of

his duties except upon a motion for presenting address to the President pray- H

A ing for the removal of a judge under Article 124( 4) of the Constitution in accordance with the procedure prescribed under the.I udges (Inquiry) Act, J %8 and the Rules made thereunder. ln .. 4.111. Bhuttaclu!ijee's case on \vhich grcn reliance \Vas placed by the petitioner cn1plasising the rectitude on the part of a .iudgc1 thi~ Court Ja;:J rule for the advocates to adhere to a code of conduct B in seeking rcJresal nn the perceived abcrrtion or the conduct or a _judge

other\visc than in accord<1ncc \Vi th the procedure prescribed in Article I.24( 4) of the Constitution. The respect for and the dignity of the court thereby was protected from scurrilous attack on the judge or the court. If the forum of the judicial process is allo\vcd to 1nount scurrilous attack on a judge, the question arises \Vhethcr the forum of lhc judicial process of vilificalion of the judges of C impulations to the judges in the pleadings presented lo lhe court would give liberty of freedom of exprc,; ion lo an advocale or a litigant. In the light of the above discussion, \Ve have little doubt to conclude that \Vhcn an advocate or a party appearing before the court rcq uircs to conduct hin1self in a 1natt er hcfitting to the dignity and decoru1n of the court, he cannot have a free licence to D indulge in writing in the pleadings the scurrilous accusations or scandalisation against the judge or lhe court. Ir the reputalion and dignity of the judge, who decides the case arc allowed to be prescribed in the pleadings, the respect for the court would quickly disappear and independence of the judiciary would be a thing of lhe past.

In Re: Roshan Lal Ahuja (1993) Supp. 4 SCC 446 when the contemnor-petitioncr's countless unsuccessful attempts against his order of removal fron1 service became abortive and in spite of this Court granting at one stage compensation of a sum of Rs. 30,000 he had indulged in the pleadings with scnrrilous accusalions on judges who granted compensation and not reinstatement. It was held by a three-Judge Bench that the contemnor had permitted himself the liberty of using language in the documents .and pleadings which nol only had the effect of scandalising and lowering the authority of the court in relation to judicial matters but also had the effect of substantial interference with and obstructing the administration of justice. The unfounded and unwarranted aspersions on the G judges of this Court had the tendency to undermine the authority of the court and would create distrusl in the public mind as to the capacity of the judges of this Court to mel out fearless justice. Accordingly, he was convicted and sentenced to undergo imprisonment for a period of four months and to pay a fine of Rs. 1,000 and in default, to undergo sentence H for a further period of 15 days.

D.C.SAXENAv. llON.BLECJ.J JRAMASWAMY, J.] 721

In L.D. jaikwalv. State of U.P., J 1984J 3 SCC 405, the conduct of an advocate in using abusive language in pleadings had vilification of a judge \Vas held to constitute contempt under Section 2( c)(i) of the Act and his sentence under Section 12 of the Act was upheld. Jn Re: Slui S. Mulgaokw; [1978] 3 sec 497 lhe conduct of a senior advocate in publishing a pamphlet imputing in1proper motives to the Magistrate \Vho decided his case was held to constitute substantial interference \vith the due administration of justice. His conviction was accordingly upheld though sentence was reduced. In KA.

Mohammed Ali v. C.N. Prasannan, [1994] Supp. 3 SCC 509 while arguing the case, the counsel raised his voice unusually high to the annoyance of the Magistrate and used derogatory language against the Magistrale before whon1 he conducted the trial of an accused. His conviction and sentcnl'.C for contempt was accordingly upheld.

In Gillers "Regulation of Lawyers - Problems of Law and Ethics" (Third Edition - 1992) al page 747 it was pointed out lhal in spite of First Amendment protection off rec speech, la\vyers \Vho con1mittcd contempt of the court \Vere D punished by American court even if they \Vere advocating th(:ir client's interest al that time. The lawyer's behaviour threatens the dignity and authority of the courts was held to constitute contempt of the Court.

Jn Charan Lal Sahu v. Union oj1ndia &Anr., [ 1988] 3 SCC 255, in a petition under Article 32 of the Constitution the advocate indulged in mud-sling- E ing against advocates and this Court. It was held that those allegations were likely to lower the prestige of this Court. This Court accordingly held that he committed contempt in drawing up the petition and directed to initiate proceedings against him for overstepping the limits in particular of selfrestraint.

It would, thus, be seen that when the first writ petition was dismissed by this Court, as a responsible citizen, the petitioner would have kept quite.

Wh_en the result animated by the petitioner was not achieved, he embittered to foul at the process of this Court and emboldened to file the second writ petition with imputation made against this Courts, in particular targctting the G Chief J usticc of India, Justice A.M. Ahmadi. As stated hereinbefore and need not be reiterated once that it is the duty of the Court to hear and decide any matter posted for admission. Therefore, there is nothing improper for the first Court presided over by the Chief .I ustice of India to hear and decide the matter. When it came up for admission, the Court appears to have been per- H

A suaded to ascertain the correctness of the allegations made in the writ petition. This Court obviously before issuing notice had sent for and directed the Solicitor General to obtain the information from the Government as to the correctness of the allegations made before deciding whether the Court wonld

exercise its prerogative power under Article 32 to issue directions as sought for. In furtherance thereof, the Solicitor General admittedly placed before the Court the record. On perusal thereof, the first Court had declined to exercise the power as enumerated and obviously stated by the petitioner that the exercise of the power under Article 32 was not appropriate since the Government in the Defence Department could recover from the Prime Minister's C Secretariat or from the Congress party, as the case may be, all the arrears, if any, due and payable by the respective entities. It is not obligatory for this Court to give reasons for dismissing the writ petition. Day in and day out in countless cases, \vhile refusing to interfere \vith the orders this Court dismisses the petitions be it filed under Article 32 or 136 of the Constitution in limine. It is also seen that though the case adjourned for two weeks, no doubt, D it was not posted on that day but it was listed some time thereafter. In the proceedings of the Court recorded by the staff, it was recorded that the Solicitor General for India appeared in the Court in his official capacity. Shri Dipankar Gupta as Solicitor General or in personal capacity obviously acted

as amicus on behalf of the court. Being the Solicitor General for India, he was directed to have consultation with Government Departments and to obtain needed information. Jn appropriate cases this procedure is usually adopted by the Court. Recording of the proceedings by the court generally is not noted by the Court. Is it improper for the Chief Justice to hear the case? Was the dismissal totally unjust and unfair for not recording the reasons ? The petitioner obviously with half-baked knowledge in law mixed up the language as

11improper for Chief Justice of India lo hear it 1 • 11Di'imissa] of the

11grouse' 1 of the petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant violation of mandate of Article 14 "Violation of the sacred oath of office" and to "declare Justice A.M. Ahmadi unfit to hold the office as Chief Justice of India".

When these imputations were pointed out to the petitioner by three-Judge G Bench presided over by brother Verma, J. while dismissing the second writ petition, to be scandalous and reckless, he had stated that he "stood by" those allegations. He reiterated the same\vithjustificationin his preliminary submissions. He has stated that the accusations made were truthful and "carefully" worded. In this backdrop scenario, the effect of these imputations is obviously H reckless apart from scandalising this Court, in particular the Chief Justice of

D.C.SAXENAv. HON'IlLECJ.I.[RAMA~WAMY, J.] 723

India and was intended to foul the process of the Court or lower or at any rate A tends to lower the authority of the Court in lhe estimate of the public and tends to undermine the efficacy of the judicial process. ll would, therefore, be clear that the accusations are gross contempt. At the height of it, he stated that since the first writ petition was not disposed of by a bench of not less than five Judges, the writ petition was not dismissed in the eye of law and the order of B dismissal is 11011 est and il is "not decided and disposed of constitutionally".

This assertion of the petitioner flies in the face of the judicial finality of lhe order of this Court and the assertion lends lo question the authority of the court. It creates tendency to obstruct the administration of just.ice and, thcref orei it would be outrageous criminal contempt. c ()mission to record reasons, according to the petitioner, is violative of the principles of natural Jusicc. The Chief Justice oflndia has committed impropriety in deciding the matter. As slated earlier, the decision is that of the Bench on behalf of the Court and the Chief Justice, being the senior-most among the members constituting the bench, had spoken on behalf of the D Bench. Therefore, the attribution of in1propcr 111otives scandalises the efficacy ofj udicia1 adj u<lication andjJer se contumaciously lo\vers or at any rate lends lo lower the dignity or authority of the Court. The prayer for prosecution oflhe Chief.Justice, though sought in Item 14(a) and ( <l) lo be withdrawn, which would be of no consequence, is, therefore, unbelievably outrageous contempt.

These findings dispose of Items 1, 3, 5, 9 and J.4(a) which remain not even amended by the contemnor.

As regards other imputations, it may be stated at this stage, as rightly F pointed out by the learned Solicitor General, that what we are required to consider is the effect of the imputations made by the contcmnor in the second writ petition and not what he sought to amend some of the averments attributing imputations to this Court and the effect thereof. By his own admission, they are

11strindent 11 an<l 1 1pungent 11 • They arc "truthful1 1 and \Vere ncarefully 11

stated by him. Even the amended avennents did not advance the conten1nor's G stand. On the other hand, they compounded perpetration of contumacious conduct recklessly made by the contemnor in the second writ petition. In item 4, the contemnor attributed that Justice Ahmadi

11ultin1atcly" dismissed the petition observing that the Government of India was capable of realising dues from Shri Rao (which it had not done in two years) and without recording H

A reasons for dismissing the petition. So much for the vaunted adherence to the twin principles of the "trampare11cy and accountability". It would be seen that insinuations that emerge from these words in writ petitions together with the phrase that CJI browbeated him ex facie scandalise the Court and tend to lower the authority of the Court. As seen, the insinuations tend to bring the B couriinto conten1pt in the estimate of the general public and that the court lacked fairness, objectivity and dismissed the writ petition for known reasons.

It also tends lo interfere with the administration of justice and that the court should give reasons lest the order be believed to be shrouded with suspicion.

Therefore, it isexjacic contumacious. The contemnor seeks to justify his averments under Section 4 of the Act as fair and accurate report of the judicial C proceedings and that, therefore, they are not contempt. Even in his modified statement, for his statement that the Chief Justice of! ndia browbeated him in disn1issing the \Vrit pctition 1 he stated the

11discerned rcluctancen on the part of the presiding.fudge. In other words, his revised imputation compounds the con1n1ission of flagrant contempt by substituting the word "browbeat 11 with the D words "discerned reluctance". Jn other words, he attributed motives to the

Court for dismissal of the first writ petition. It would, thus, be clear that the contemnor animated to impute motives to the ChiefJustice of India in the discharge of his constitutional duly of.deciding a case. When his grouse (stated by the petitioner - emphasis supplied) against Shri P.Y. Narasimha Rao was E not redressed exercising the power under Article 32 a result which he wanted, the petitioner contumaciously attributed motives to the Court, in particular to the presiding officer of the Court, the Chief J us lice of India and thereby he scandalised the Court in the estimate of the general public. We fail to appreciate the stand of the petitioner that Section 4 bails him out and purges F from contempt. It would be applicable only to publication of the report of a judicial proceedings fairly and with accuracy to outside the world. There is a distinction between expression in pleading and publication of the report of judicial proceedings or an order without malice as fair and constructive

criticism to the readers. As stated earlier, fair criticism of the judicial proceedings outside the pleadings of the Court is a democratic feature so as G to enable the court to look inward into the correctness of the proceedings and the legality of the orders of the Court by the Court itself for introspection. But a party has duty and responsibility lo plead as a part of the averments or the prayer in the relevant portion with language befitting with the dignity of the Court and the judicial process and not in selfabuse of the freedom of exprcs- H sion given under Article 19(l)(a). Abuse of the process of the court is a self-

D.C. SAXENA v. HON"BLE CJ.I. [RAMASWAMY, J.] 725

evidence. AB such Article 19(2) creates an embargo on the freedom of exp:ession and excludes from its operation the power of contempt of Court of under the Act. This Court being court of record, power of this Court under Article 129 is independent and is not subject to Article 19(1)(a). Et abundanti cautela, Article 19(2) excludes the operation of Article 19(1) when speech or expression is trapped in contempt of court or tends to trench into it. When . the contempt of court is committed by a litigant, the freedom of expression being contemptuous become punishable under Article 129 of the Constitution de horse the power under Section 12 of the Act.

Item 7 relates to the imputation that the Chief .I ustice of India gets no judicial protection unlike the President of India for being prosecuted even while Chief Justice A.M. Ahmadi holds office as Chief .Justice of India and is accordingly liable to prosecution. This bravado not only impinges upon the protection given by Article 124( 4) of the Constitution and under relevant provisions of the Protection of Official Act ex f acic it is an outrageous tendency to lower the authority of the Court and interference with judicial ad- D ministration. The assertion of the petitioner that this is a constitution(ll conundrum required to be decided by a Constitution Bench of this Court highlights contumacious conduct of the contemnor.

In item 8 he attributes that this Court "willji1lly" and "advertently" (emphasis supplied) violated fundamental rights of contemnor and of other people in not granting relief of direction to Sri P.V. Narasimha Rao to pay the alleged dues. The word "advertentlywas carefully used by lhe petitioner and the word "willfully" was employed for refusal of the relief. They do emphasise

the emphatic tone of the language and the n1otive of the contcmnor and attribute motives to this Court that the relief sought for in the first writ petition "advertently" was not granted and was "willfully" declined and thereby the Chief Justice Ahmadi lost constiutional protection of not being prosecuted.

This accusation is a culmination of the contumacious conduct of \Vant on scandalisation of the Court and reckless denigration. In his amended petition, he G further aggravates the contempt stating that the dismissal of the petition by the first court sent wrong signals to the entire judiciary of which Justice Ahmadi is the head as Chief Justice of India. The scurrilous attack, therefore, is not only on Justice Ahmadi as a Judge but also as the Chief Justice of India and also as head of the institution of the whole country. Thereby he designedly and deliberately allowed himself brought within ex facie criminal contempt.

Item 9 relates to the accusation "what are the legal consequences of the violation of cnth of office by Justice Ahmadi". He states in his preliminary submissions that it a constitutional question required to be decided by a Constitution Bench. As stated earlier, every qeestion raised need not necessarily be decided unless the case cannot be disposed of without the question for granting or refusing to grant the relief. The oath of office taken by a Judge of this Court is not that he should allow every case or dismiss every case but only to uphold the Constitution and the laws and to administer justice in accordance therewith in tune with the oath of his office. The protection of Article 124(4), 121,211, the Judicial Officers Protection Act and the J udgcs (Protection) Act is to ensure independence to the judiciary. Threat to.Judicial process is a chal- C lenge to the authority of the court or majesty of justice. It would be ex-facie contun1acious conduct.

In item 10 again, the petitioner attributes that Justice Ahmadi as Chief Justice oflndia and as a Judge of this Court deliberately and willfully failed lo D perform his duties and stultified the performance of fundamental duties by the petitioner. This imputation is the consequence of the dismissal of the first writ petition. Thereby, he seeks stripping of citizenship of Justice Ahmadi, It

is an unbelievable outrageous affront to the majesty of justice on the part of the contemnor and scandalisation of this Court. It tends to lower the dignity and authority of the Court and also sows seeds for persons with similar E propensity to undermine the authority of the Court or the judiciary as a whole; he crossed all boundaries of recklessness and indulged in wild accusations.

He sought justification in his preliminary submissions that it being a question of la\v, it docs not amount to personal imputation or insinuation. In spite of this Court pointing it out to be. scandalous, when the second writ pelition was p dismissed and his persistence that he stood by those allegations, it does not lie in his mouth to contend either in his preliminary submissions or his modified form that the dismissal of the first writ petition amounts lo failure lo perform fundamental duties by the CJI ancl, therefore, it would further compound the contempt.

G In imputation 11, the petitioner attributed to the Chief Jusice of India that he had allowed his son lo practise in the Supreme Court and to stay with him in his official residence etc. The petitioner sought justification to the said imputation from reports said to have been published in the "India Today" and "The Times oflndia" by a lady senior advocate of this Court. But the petitioner H has not placed on record the said material. Therefore, we do not have the ad-

D.C. SAXENA v. HON'BLE CJ.I. [RAMASWAMY,.!.] 727

vantage to verify their contents or correctness or otherwise of the statements A said lo have been published therein. When we pointed out to the petitioner whether he had made any independent enquiry, he had reiterated that he relied upon those slalements. ln other words, by implication, he admitted that he did not make any independent enquiry into the alleged misuse of official facility by the Chief Justice of India in permitting his son to practise in this B Court or to reside in his residence along with him. For the said imputation he said that Justice Ahmadi, the Chief Justice of India is liable to be prosecuted under the Prevention of Corruption Act and he seeks as a justification the ratio decidendi of Veeraswanii's case. It is seen that Veeraswa111i's case has no application whatsoever. As stated earlier, Article 124( 4) of the Constitution read with the Judges (Inquiry) Act prescribes the procedure to take action C against a .Judge of the Supreme Court or of the High Court for proved misbehaviour or incapacity. As laid down in Bhattacha1jee's case, Bar Association of the concerned Court was given liberty to place any material of the aberration of the conduct ofJudge before the CJ! for redressal as per the ''inhouse" procedure laid down therein. For proved misbehaviour, the address D by each House of Parliament to the President for removal of a Judge pursuant lo a finding of proved misbehaviour or incapacity under the Judges (Inquiry) Act by a resolution of not less than two-third of the members of the House and voling by two-third of the House present and an order or removal therein by the President of India is culmination. In Blwttacharjee's case, this Court also laid down that no other authority or person has power to conduct any enquiry E against the conduct of a Judge. Article 121and211 prohibit discussion, in the Parliament or in the Legislature of the State, of the conduct of Judge of the Supreme Court or High Court respectively. Therefore, when the Constitution prohibits the discussion of the conduct of a Judge, by implication, no one has power to accuse a judge of his misbehaviour or incapacity except and in ac p core.lance with the procedure prescribed in lhe Constitution and the Judges (Inquiry) Act or as per the procedure laid down in Blzattachmjee's case. Irrelevancy of the accusations apart, the prayer for prosecution of the Chief Justice of India under the Prevention of Corruplio_n Act is an assault on majesty of justice, affront to authority of law, the gravest contumacious conduct and scurrilous scandalisation of the court.

Item 12 of the accusation relates to the payment of litigation cost incurred by the contemnor in both the writ petitions and the Joss said to have been caused to the public exchequer by nonpayment by Sri P.V. Narasimha Rao, from personal pocket of Justice Ahmadi as a Chief Justice for dismissal H

A of the writ petition. He stated in his preliminary submission that when loss was caused by a public servant in his official capacity to the public exchequer due to his dereliction of duty and under thr. law it was recoverable from pay or pension of the public servant, on the same analogy Chief Justice of India should be liable to make good the loss incurred by him and by the State due

B to non-payment by Sri P.V. Narasimha Rao. The implication is that byjudieial act, if a Presiding Judge dismisses a petition, he is liable to bear personally not only the costs incurred by the litigant but also the resultant loss to the State with interest payable thereon. This imputation is a deliberate interference with the judicial process and tends to lower the authority of the Court spreading the virus to repeat by <lrum beats of similar reckless ilnputations against C the judiciary at every forum down to the lower rank of the judiciary spreading rippling effect on independence of the judiciary, authority of the court and wanton interference with judicial process. It must be held to be a depraved contun1acious conduct.

D Item 13 relates to the interference with the judicial management of the Court and the duty of a.Judge. When an accusation is n1adc against the Presiding Judge, by implication, until the matter is decided, the Presiding Officer has to desist from discharging the judicial duties by his proceeding on lca\'C and the senior-most puisne Judge would assume the office of the Chief Justice. This is a deliberate interference in the judicial n1anagcmcnt tending to E sow disaffection in the efficacy of dispensation of justice. The further accusation that the ChiefJustice of India should not constitute a Bench of the Judges appointed during his tenure so that "he (CJ!)" "may not directly or indirectly iniluence any of the Judges hearing the matter 11 • lt\vou!<l, thus, be in uncquivo~ cal loud expression that the contemnor attributed motives to the CJ l that the F Judges appointed during his tenure as Chief Justice are amenable to his influence in judicial adjudication and would decide the causes by pressure or influence directly or indirectly brought by the Chief Justice of India. Equally, it is a corollary that these .T udges are amenable to influence and thereby they do not decide the cases posted before them legally and objectively. The Court is subject to pressures and decides cases under iniluence. These accusation~ G and decides cases under influence. These accusations are flagrantly outrageous to scandalise the Court. Though the contemnor has sought lca\'e to modify this statement, ultimately, in his amended statement, he did not touch upon this aspect of the matter. In other words, as stated earlier, he stood by his avcrments calculatedly made. His justification thatJ ustice P .N. Bhagwati H (as he then was) decided first S.P. Gupta's case when allegations against

D.C. SAXENA v. HON'BLE CJ.I. [RAMASWAMY!.] 729.

CBI Chandrachud were made has no application. In a judicial proceedings A taken by this Court, the office of the Chief Justice of India was directly involved in appointment of additional Judges or exlension of their tenure as additional Judges or their transfer' The Chief Justice of India recluscd himself from the Bench; resultantly, the senior-most puisne Judge came to preside over that Bench. Thus, the conlemnor has committed the contempt of this Court under Article 129 of the Constitution.

The question then is: what punishment is to be awarded to the conlemnor '!As pointed out earlier, the repealed assertions of the petitioner that he has no personal gain in the litigation and was actuated by the public duty and laid the petitions, bear no relevance or a defence. ll is already held that in a C conten1pt proceedings, the n1otive, in other \Vords, the 111ens rea is not relevant. What would be the effect of the act or conduct or imputation is the relevant question for decision? It is true that in an indictable offence under penal law generally 1nens rea is an essential ingredient and the burden lies on the prosecution to prove it affirmatively. In a contempt proceedings of sum- D n1ary nature, the proof of nzens rca is absolutely unnecessary. What is material is the effector the tendency of the act, conduct or the publication of the words, \Vrittcn, spoken or by signs or by visible representation or otherwise an<l \vhcther it scandalises or tends to scandalise or lo\vers or tends to lo\ver the authority of the Court or prejudices or tends to prejudice or interfere or tends to interfere \vith the due course of any judicial proceedings or interferes or E tends to interfere v., rith or obstruct the administration of justice in any other manner. The tendency due to the publication, whether by words - written or spoken or by signs or by visible representation or otherwise, of any matter or the doing of any other act whatsoever is relevant and material.

It is already noted that while dismissing the second writ petition, this Court has pointed out the scandalous nature of accusations which found place in the second writ petition and when the petitioner persisted for consideration of scandalous accusations to lay proceedings against the Chief Justice of India for prosecutiOn and other reliefs referred to hereinbefore, he G reiterated that he would stand by those accusations. Resultantly, this Court was constrained to go into merits and dismissed the petition and initiated suo motu contempt proceedings and got the notice issued to him pointing out specifically 14 items which constituted scandalous and reckless litigations pleaded with irresponsibility. He reiterated them in his preliminary submissions with further justifications. He admitted that may of them are strident H

A and pungent. He modified some but, as has been pointed out, by compounding further contempt. [n spite of the Solicitor General pointing out the seriousness of the accusations and lhc need for the petitioner to have further consultation with a counsel of his choice the cuntemnor remained unmoved.

On April 15, 1996, when the matter came up before with Bench for the first B time after the service of no! ice of the cont cm pt and his Jiling the preliminary submissions, the petitioner had orally stated that some legal counsels in the Bar suggested to him that he should modify the offending portions noted in the contempt notice. It would, thus, be seen that he appears lo have had consultation with some advocates at the Bar and that he did not retract his steps.

He did not tender any unconditional apology, though this Court is not bound C to accept such an unconditional apology for consideration. Considered from the totality of the facts and circumstances, the gravest magnitude of the contumacious conduct of the contemnur, we are left with no option but to conviclh and sentence him to undergo simple imprisonment for a period of three months with a fine of Rs. 2,000 payable in a period of 3 months and in case of D default, to undergo further imprisonment for a period of one month.

The contempt petition is accordingly disposed of.

N.P. SINGH, J l have the privilege of perusing the judgments of my learned brothers K. Ramaswamy and S.P. Bharucha, J.I. I agree to the con- E clusions arrived al by them and the sentence imposed against the contcmner.

BHARUCHA, J. I have had the advanhge of reading the judgment and order proposed by my learned Brother, the Hon'ble Mr. Justice K. Ramaswamy. I agree with the order but, very respectfully, now set out my reasons therefor.

The alleged contemnor, Dr. D. C. Saxena, had filed a writ petition (C.W.P. No. 432/95) in this Court in the public interest seeking to recover from the then Prime Minister, Mr. P.V. Narasirnha Rao, expenditure incurred for the private use of Indian Air Force aircraft and helicopters and consequential reliefs. The alleged contemnor appeared in person when the writ G petition was called out on 17th July, 1995, for admission before a Bench comprised or the Chief Justice of India, the Hon, ble Mr. Justice A.M. Ahmadi, and the Hon'ble Mr. Justice S.C. Sen. The Bench sent for the Solicitor General for India and directed him to verify the contents of the writ petition, which was ordered to be listed after two weeks. On 7th August, 1995, the writ H petition was listed before a Bench comprised of the Chief Justice oflndia and

D.C. SAXENA v. HON'BLEC.T.I. [BHARUCHA, J.] 731

S.C. Sen and K.S. Paripoornan, .I.I. The Solicitor General placed the original A record before the Court and, after perusing the same and hearing the alleged contemnor, the writ petition \Vas sun1marily dismissed.

The alleged contemnor filed a second writ petition (No 017209/95) making the Chief Justice oflndia the respondent thereto. He prnycd that it be declared that the respondent was unfit to hold the office of Chief J us ti cc of India; that the respondent be stripped of his citizenship; that an F.I.R. be registered against the respondent for committing forgery and fraud; for a direction that tile respondent be prosecuted under the Prevention of Corruption Act, and for other reliefs. The alleged contemnor submitted that it was improper for the respondent to have heard the earlier writ petition and that the respondent had attempted but failed to browbeat the alleged contemnor; the dismissal of the earlier writ petition without recording the reasons there for invited the comment, "So much for the vaunted adherence to the twin principles of transparency and accountability''. The grounds for the relief which the alleged contemnor sought, inter alia, \Vere :

- "for causing fabrication of court proceedings of 7th August, 1995 .......... ".

- "for wilfully and advertently violating the fundamental rights of not only the petitioner as an individual, but that E of the people of India ........ "

- "for violation of the sacred oath of office by the respondent11;

- "for deliberate and wilful failure to perform fundamental F duties and stultifying their performance by the petitioner"; and

11for allo\ving his son \Vho is practising in the Supreme Court to stay with him in his official residence, and presumably G misusing official facilities and prestige of oftice of Chief Justice of India."

The alleged contemnor added that during the pendency of the writ petition, the respondent "may be advised to proceed on leave, so that he may not directly or indirectly influence any of the judges hearing the matter".

A The second writ petition came up for admission before a Bench comprised of Verma, .I. , rnd lwoof us (N.P. Singh and S.P. Bharucha, .T.J). After hearing the alleged contemnor, the second writ petition \vas dismissed, the following order being passed:

"The several avermcnts in the \\Tit petition are scandalous and it is surprising that the petitioner, \vho is, said to he a Professor in a University, has chosen lo draft and file such a writ petition. His understanding of the meaning of Article 32 of the Constitution, is to say the least, preposterous. The allegations 1nadc an.; reckless and disclose irresponsibility on the part of the petitioner. This writ petition is wholly n1isconccivd and is an abuse of the process of 1 he Court. The \Vrit petition has no 1nerit.

The \Vrit petition is, therefore, dismissed

Jn view of the attitude of the petitioner even at the hearing, when he persisted in this stand and, on our asking him, reiterated that he stood by the scandalous avcrment made therein, we consider it our duty to issue to the petitioner a notice to show cause \vhy proceedings to punish him for contempt of this Court should not he initiated against him. The Registry to take the necessary steps for registering the n1atter as a contempt petition. The petitioner \vho is present in person is given notice of the contempt petition.

He is required lo file his reply within four weeks to show cause why proceedings for contempt should not be initiated against him.

We request the learned Solicitor General to assist the Court in this contempt matter.

List the matter after notice of the dated fixed by Registry is given to Dr. D.C. Saxena and the Solicitor General."

Pursuant to the order the alleged contemnor was served with a contcmt notice, which drew his attentioi1 to the following contents of the G second writ petition :

"(i) "Page 4 Para-9

" ..... it was improper of Justice Ahmadi to hear it."

(ii) Page 5 Para-10

0.C. SAXENA v. HON'BLE C.T.f. [BHARUCHA, J.] 733

"That Justice Ahmadi's utmost reluctance to perform his fun- A damental duties and constitutional obligations was apparent, when dtcr failing to browbeat the petitioner, ............ "

(iii) Page 6 Para-14

" ....... To this Justice Ahmadi respondent that he (th~ Solicitor B General) was there to assist the Court, contrary to the evidence ol' the Court proceedings."

(iv) Page 6 Para - ] 5.

" ........... and without recording reasons for dismissing the petition. C So mtich for the vaunted adherence lo the twin principles of tran:; parency and accountability."

(v) Page 6 Para-17

" ........ The Course of action by Justice Ahmadi, in dealing with the D grouse of the petitioner and dismissing his petition, is totally unjust, unfair, arbitrary and unlawful. IL is in flagrant violation of the mandates of Article 14 of the Constitution, which "runs like a golden thread" through it and is the fountliltion of justice and fair play ...... "

(vi) Page 7 Para-l8(c)

"For causing fabrication of court proceedings of 7 August, 1995, anc.J not mentioning the fact of appearance of the Solicitor General, would justice Ahmadi not be liable to prosecution under the relevant provisions of the Indian Penal Code, in consonance with F the time-honoured maxim, "Be you ever so high, the law is above you?"

(vii) page 7 Para-18(d)

"Can Justice Ahmadi be allowed to take shelter behind the cloak G of judicial immunity, in the facts and circumstances of the instant case, particularly when unlike the President of Jfidia, who cannot be impleaded in civil or criminal proceedings" during his terms of office" he enjoys no such constitutional protection ?

(viii) Page 7 Para 18(e) H

"For wilfully and adverlenlly violating the fundamental right of not

only the petitioner as an individual, bul that of the people of India,

\Vho are ultimately sovereign, as stated in the Preamble to lhe

Constitution, has nol Justice Anmadi forefcired any legal protection, even it if \Vere available to him ? 11

(ix) Page 8 Para-l8(f)

11What are the legal consequences of the violation of the sacred oath of office by J us lice Ahmadi ?"

(x) Page 8 Para-18(g)

"For deliberate and wilrul failure lo perform his fundamental duties

and stultifying their performance by lhc petitioner, should not

Justice Ahmadi be stripped of his citizenship, because duties alone can confer the corresponding legal an<l constitutional rights ?' 1

(xi) Page 8 Para-18(h)

11For allo\ving his son \Vho is practising in the Supren1c Court, to stay \Vith him in his official residence, <in<l presumably misusing official facilities and prestige of office of Chief Justice of India, is not .J usticc Ahmadi liahlc to be prosl'.cutc<l under the Prevention of Corruption Act, in view of the ratio decidendi of Vecraswa1ni's case ?"

(xii) Page 8 Para-18(i)

"ls Justice Ahmadi not liable to pay from his pocket not only the legitimate costs incurred by the petitioner in C.W.P. No. 432 of 1995 and the present petition, but also the loss caused to the public exchequer by non-payment oi dues with 18% interest by Shri P.V.N. Rao'!"

(xiii) Page 8, 7th line from the bottom

" ........ excluding any Judge who owes his elevation to the apex Court to Justice Ahmadi, Further, during its pendency. Justice Ahmadi may be advised to proceed on leavei so that he may not directly or indirectly influence any of the Judges hearing the matter."

D.C. SAXENA v. HON'BLECJ.l. [BHARUCHA, J.J 735

(xiv) Page 9 Prayer

( d) Declare the respondent unfit to hold office as Chief J us ti cc of India;

(b) Strip the respondent of his citizenship;

(c) Direct the registration of an F.l.R. against the respondent under the Indian Penal Code for committing forgery and fraud;

(cl) Direct the respondent's prosecution under the Prevention of

Corruption Act.

The alleged contemnor filed written submissions in reply to the contempt notice. His first submission was that the Bench which had heard and dismissed the second writ petition had been constituted by the respondent, who had thereby become a judge in his own cause. The second writ petition was, accordingly, not listed before a court competent to dispose it of, so that D the order of its dismissal was non est, and it was still deemed to be pending.

The contempt notice \Vas, therefore, premature. The \vritten submission then dealt with the portions of the second writ petition which had been indicated in the contempt notice and reiterated the same, except only that it was submitted that the allegation about fabrication of the court proceedings of 7th E August, 1995, was ''somewhat unhappily worded". It was submitted thereafter that the Contempt of Courts Act was a legacy ofBritish imperialism and, while appropriate to a

11banana republic\ \Vas incompatible with a democratic, people's polity; it was a law-less law because it fused the offices of the prosecutor and the judge and "belongs with the infamous Spanish Inquisition". After his signature at the foot of the written submissions, the alleged F contemnor added in hand, "N.B. If some passages seem strident or pungent, the defendant is willing to suitably modify them."

The contempt notice came up before this Bench on 15th April, 1996.

The following order was then passed : G

"Pursuant to the notice issued by this Court the Contemnor Dr.

D .C. Saxena is present today in person. He has stated that he would modify the offending portions noted show case notice in Item (ii), (vi), (vii), (viii), (x), (xii), (xiii) and wishes to withdraw unconditionally item xiv, paras B and C.

The learned Solicitor General has pointed out that even if the Contemnor withdraws or files statement in the modified form what the Court required to do is whether hi$ statements made in •he writ petition originally filed constitute contempt of the Court or not and his modification of the above statements would not be of material reliance for consideration. Since the contemnor seeks time to submit the show cause in the modified language which he wishes no place before the Court, at his request the matter is adjourned to May 2, 1996 at 2.00 p.m. The Registry is directed to supply complete set of papers to learned Solicitor General."

C Pursuant to this order the alleged contemnor submitted a statement of modifications. In regard to Item (ii) of the Contempt notice, the amended version read:

"The petitioner discerned reluctance on the part of the presiding judge to allow the relief claimed, which was in public interest, and actuated by the desire to "preserve and protect public property," without any personal malice."

In respect of Item (iv), it read :

"That Justice Ahmadi ultimately dismissed the petition, observing that the Government of India was capable of realising the dues from Shri Rao (which it had not done in two years) and without . . recording the reasons for dismissing the petition, for which lapse it has often berated High Courts, in pursuance of the twin principles of transparency and accountability."

In respect of item (vi), it read :

nFor inaccurate recording of the court proceedings of 7 August, 1995 and not mc11tioning even the fact to appearance of the Solicitor General for the respondents, what responsibility would ensue on the presiding judge, who dictated them ?"

In respect of item (vii), it read :

"When under the Constitution, judges of superior courts do not, unlike the President of India, enjoy total immunity during their term of office, can the presiding judge be allowed to make such. a Claim for wrong-doing? 11

D.C. SAXENA v. HON'BLE CJ.I. [BHARUCHA, J.] 737

In respect of item (viii), it read : A

"For violating the fundamental rights of not only the petitioner, as an individual, but also that of the people of India, who are ultimately sovereign, as staled in the preamble to the Constitution, has not Justice Ahmadi sent wrong signals to the entire judiciary, of which he is the head ?" B

In respect of item (x), it read :

"For failure lo perform his fundamental duties and impeding their performance by the petitioner, should not Justice Ahmadi be regarded as accountable to the people of India, because duties C alone can confer the corresponding legal and constitutional rights? 11

In respect of item (xii), it read :

"Who would be liable lo reimburse the legitimate costs incurred D by the petitioner in C.W.P. No. 432 of 1995, and the present petition, and the huge loss caused lo the public exchequer, because of persistent default in paying them, by Shri P.V. Narasimha Rao, \vith 18% intercst'! 11

In respect of item (xiv), it read :

"(Prayers) (b) and ( c) may kindly be treated as deleted"

The malterwas heard on 2nd May, 1996. The Solicitor General, appearing amicus cwiae, suggested al the outset that the alleged contemnor would

be advised to take legal counsel before proceeding further, but the suggestion F was not heeded. The Solicitor General drew our attention to what has been set out above. He submitted that the averments in the second \Vrit petition were rna<le and remained on the record; they \Vere ex-facie contumacious.

The alleged contemnor had sought to delete some of these averments and modify some others but had expressed no regret for what he had already said. G Even the modified averments \Vere contumacious.

The alleged contemnor submitted that he had the greatest respect for this Court and that he had expressed the same in his reply to the contempt notice. The modifications that he had made indicated his own fallibility, for he had used exaggerated language in the second writ petition. He submitted H

A that the certified copy of the first order in the earlier writ petitions did not indicate that the Solicitor General had appeared amicus curiae. He drew attention lo the judgment of this Court in C. Ravichandran Iyer v. Justice A.M.

Bhattuchmjee & Ors., jl995] 5 S.C.C. 457, in support of his submission that the respondent to the second writ petition was liable to be prosecuted under the

Prevention of Corruption Act for allowing his son "who is practising in the Supreme Court, to stay with him in his official residence, and presumably misusing official facilities and prestige of office of Chief Justice of India". He said that the factual basis for this submission were articles in a newspaper and a news magazine. He submitted that he had acted for the public good and that Sections 4 & 5 of the Contempt of Courts Act applied. He also contended that the Contempt of Courts Act was violative of the Constitution, but did nol enlarge upon the contention.

Article 129 of the Constitution of India provides that the Supreme Court shall be a court of record and shall have all the powers of such a court D including the power to commit for contempt of itself. Any act done or writing published \Vhich is calculated In hring a courl or a judge into contempt or to lo\vcr his authority or to interfere \Vi th the due course of justice is a conten1pt of the Court: scurrilous abuse of a judge or court, or attacks on the personal character of a judge arc acts of contempt. See R. v. Grey, (1900) 2 Q.B. 36. "The object of the discipline enforced by the court in the case of contempt of E court is not to vindicate the dignity of the court or person of the judge, but to prevent undue interference \Vith the adn1inistratio~ of justice". (He/Jnore v.

Smith, (1886) 35 Ch. D. 449). This is not to say that judicial decisions may not be subjected to criticis1n; they can, but not the judges who took thcn1. Lord Atkin inAmbardv.A.G. For Tiinidad and Tobago, (1936) AC. 322, said: "The F path of criticism is a public way: the wrongheaded arc permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticisn1, and not acting in malice or attempting to impair the ad1ninistration of justice, they are immune. Justice is not cloistered virtue : she must be allowed to suffer the scrutiny and respectful, even though out- G spoken, comments of ordinary mcn.

11 In Re. A.G. of Canada and Alexander al,

(1976) 65 D.L.R. (3rd) 608, a newspaper was held by tho Supreme Court of the Northwest Territories of Canada to have committed contempt for alleging a "cover-up 11 by court officials, participated in by a Supren1e Court judge, to shield a public figure from adverse publicity. In New Zealand solicitor was H held by the Court of Appeal to have committed contempt for alleging that in

D.C. SAXENA v. HON"BLECJ.l. [BIIARUCHA, J.] 739

a previous case judges had been guilty of forgery, fabrication of evidence an<l A partiality; in the court's opinion, "there could not be a clearer case of a serious contempt of court... .. " (Re. Wiseman, (1969) NZLR 55). The contempt jurisdiction is not, thercf ore, to be found in "banana republics 11 but in <le111ocracies that abide by the rule of law. ll is intended to uphold the authority and dignity oft he courts of law which, on behalf of the State, deliver justice and protect the public confidence that is reposed in them.

The contempt notice lo the alleged contemnor pursuantto the order of disn1issal of the second \Vrit petition \Vas issued in exercise of the pO\VCr of this Court, recognised by Article 129 of the Constitution, to punish for contempt

of itself. The issue of the constitutionality of the Contempt of Courts Act is, C

therefore, not gern1anc.

The earlier writ petition came up for admission on 17th July, 1995. The Solicitor General was, admittedly, called by the Bench and asked to look into the papers. The n1inutes shO\V the Solicitor General as having appeared ti for D the respondent'". Since the Solicitor General appeared on being called by the Bench, plainly, he coukl not have appeared

11for the respondent." His appearance \Vas wrongly recorded.

The matter was listed again on 7th August, 1995. On that occasion the appearance of the Solicitor General was not shown in the minutes, but, admittedly, he appeared and showed to the Bench the original record. After seeing it and hearing the alleged contc1nnor, the earlier \vrit petition was dismissed.

According to the second writ petition, the alleged contemnor asked the Bench '\vho1n the Solicitor General \Vas representing, since he could not appear for

a priYate party, namely, the President of the Congress Party. To this Ju.stice f Ahmadi responded that he was there to assist the Court contrary to the evidence of the court proceedings." Upon this basis the alleged contemnor slated in the second writ petition that the respondent (the Chief Justice of India) had caused "fabrication of court proceedings on 7th August, 1995 and \Vas, therefore, liable to prosecution under the relevant provisions of the Jn- G dian Penal Code" The relevant prayer of the second writ petition was that an F.l.R. be registered against the respondent under the Indian Penal Code for committing

11forgery and fraud''. The alleged conte1nnor who i, c.;, [understand, a Professor of English, could have had no doubt of the grave import of the v..:ords 'fabrication', 'forgry' and 'fraud'. He also knew lhem to be offences

under the Indian Penal Code". The modification made by the alleged contem- H

A nor of the averments in this regard is that the respondent was responsible for

"inaccurate recording of the proceedings of 7th August, 1995," and the prayer is sought to be deleted. The modification does not speak of inadvertant inaccurate recording or express any regret for the allegations of fabrication, forgery and fraud. The allegation of inaccurate recording, as made, suggests

that such recording was deliberate and there is, therefore, no more than some moderation of language. The allegations of fabrication, forgery fraud and inaccurate recording of proceedings are made in respect of a judge in the performance of his judicial function. They are of a most serious character. They arc intended to lower the authority of and respect for the courl and the office of the judge.

Upon the same facts there are aHegations in the second \Vrit petition that the respondent violated his oath of oflice and failed to perform his fundamental duties. The summary dismissal of a writ petition by a judge is not a violation of his oath or fundan1ental duties; at \Vorst, it might be a judicial D error. The disn1issaJ of a \Vrit petition cannot \var rant the charge of violation of his oath by a judge; and, in my book, no more serious charge against a judge can be n1ade. What the alleged conte1nnor conveniently does not mention is thal the three learned judges (includir.g the respondent) who constituted the Bench found no merit in the earlier writ petition and dismissed it. The suggestion of the alleged contemn or in paragraph 15 of the second writ petition that E the earlier writ petition was dismissed by the respondent suggests that the other lwo learned judges counted for nothing, and this is also contempt. The allegations are scurrilous and scandalise the court.

It is lhe duly of the ChiefJ ustice of a court to assign judicial work to his F brother judges. It was, therefore, the duty of the respondent to assign the second writ petition to a bench to hear it. By doing so he did not, as is alleged, become, a judge in his own cause. It is contempt to imply, as the alleged contemnor does, that the respondent would assign it lo a bench which would not pass an order adverse to him. It is also contempt to imply that judges would be so amenable. To plead that the Bench that heard the second writ petition G could not have heard it and, therefore, could not have dismissed it and that it is deemed to be still pending is to at!t! to the contempt. These allegations are also aimed at bringing the administration of justice into disrepute.

The second writ petition alleged that the respondent had allowed "his H son, who is practising in the Supreme Court, to stay with him in his official

D.C. SAXENA v. HON'BLE CJ.I. [BIIARUCHA, J.] 741

residence and presumably mis-using official facilities and prestige of office of A Chief Justice of India" and sought his prosecution under the Prevention of Corruption Act. The allegation and prayer are not sought to be modified. The allegation is not in any way connected with the dismissal of the earlier writ petition. It is brought in for no reason other than to vilify the respondent in connection with his official duties and position. How irresponsible the allega- B tion is is shown by the fact that, according lo the alleged contemnor himself, it is based only upon what he read in articles in a newspaper and a news magazine.

I have dealt with what seem to me to be the principal contempts; I agree broadly with the discussion by brother Ramaswamy, J. of the other allegations C made by the alleged conlemnor.

The alleged conlemnor has sought the protection of Sections 4 and 5 of the Contempt of Courts Act. Whal he has written in the second writ petition is neither a fair and accurate report of the proceedings of the earlier writ petition nor a fair criticistn thereof. The principle underlying these provisions is, D therefore, not applicable.

For the reasons aforesaid, I find the alleged contemnor to be in contempt.

Having regard to the gravity of the contumacious statements, the reek- E lessness with which they arc made, the intemperateness of their language, the mode of their publication in a writ petition in this court and the alleged contemnor's influential position in society, I do not think that punishment only in the nature of a fine would be adequate. A contemnor such as the present must also undergo imprisonment. p

Accordingly, the alleged contemnor is convicted for contempt and sentenced to undergo simple imprisonment for a period of three months and to pay a fine in the sum of Rs. 2,000 (Rupees two thousand). In default of such payment within three months, the alleged contemnor shall undergo further simple imprisonment for period of one month.

In view of the conviction and sentence, the Court Marshal of the Court is directed to take the Contemnor into custody and confine him to Tihar Jail for his undergoing the sentence as imposed in the case.

R.P.

Petition disposed of.