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PETITIONER: A.M. MATHUR

       Vs.

RESPONDENT: PRAMOD KUMAR GUPTA

DATE OF JUDGMENT22/03/1990

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) SAHAI, R.M. (J)

CITATION:  1990 AIR 1737            1990 SCR  (2) 110  1990 SCC  (2) 533        JT 1990 (1)   545  1990 SCALE  (1)527

ACT:     Practice   and   Procedure:   Judicial   restraint--Need for--High Court Judge making derogatory remarks  criticising counsel,  parties or witnesses--Such remark not to  be  made unless absolutely necessary for deciding the case.

HEADNOTE:     While allowing a writ petition, one of the Judges deliv- ered  the  main Judgment invalidating the  decision  of  the Government on the ground that it violated Article 14 of  the Constitution.  The  other Judge delivered  a  separate,  but concurring  opinion which contained highly  disparaging  re- marks  attributing mala fides and underhand dealing  on  the part  of  the State Government. Several appeals  were  filed against  the  said decision before this  Court.  This  Court allowed the appeals and observed that the strictures  passed in  the  concurring Judgment were  totally  unjustified  and unwarranted. State of M.P. v. Nandial Jaiswal & Ors., [1987] 1 SCR 1.     Thereafter an Advocate who had no connection  whatsoever with the litigation filed a review petition before the  High Court.  It was alleged that the State  Government  committed fraud and procured the judgment from this Court. The  matter was listed before a Division Bench on 29th October 1988, and one  of  the  Judges dismissed the review  petition  as  not maintainable. Meanwhile, another application for review  was filed  stating that the Vidhan Sabha proceedings would  lend credence  to the claim that the State Government  had  prac- tised  fraud on the Court. On 6th February, 1989  the  other Judge,(who  had passed strictures against the Government  in the  Writ Petition) dismissed the review position, for  want of jurisdiction, with an observation that had the  appellant acted  bona  fide in briefing the then Chief  Minister,  the fraud  on the Court, as also the misleading press  statement by the then Chief Minister, would have been avoided. It  was further  observed that the appellant did not  act  befitting the  status of the high office of the Advocate  General  and that  he did not have the courage to face the  situation  in the Court later. Before this Court. the appellant contended that he had no 111

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opportunity to meet the allegations in the review petitions. He had also contended that earlier he entered appearance  as Advocate  General on behalf of the State, and that when  the review  petitions  were heard neither he  was  the  Advocate General nor did he wish to enter appearance since he thought that the review petitions deserved to be dismissed as  there were no valid grounds. Allowing the appeal, this Court,     HELD: 1. Judicial restraint and discipline are as neces- sary to the orderly administration of justice as they are to the  effectiveness of the army. The duty of restraint,  this humility  of  function  should be a constant  theme  of  our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of  the judiciary..Judicial restraint in this  regard  might better  be called judicial respect; that is, respect by  the judiciary.  Respect  to those who come before the  Court  as well to other co-ordinate branches of the State, the  Execu- tive and the Legislature. There must be mutual respect. When these  qualities fail or when litigants and  public  believe that  the  judge has failed in these qualities, it  will  be neither  good  for the judge nor for the  judicial  process. [117C-E]     2.   The  Judges Bench is a seat of power. Not  only  do judges have power to make binding decisions, their decisions legitimate  the use of power by other officials. The  Judges have  the absolute and unchallengeable control of the  Court domain. But they cannot misuse their authority by  intemper- ate  comments, undignified banter or scathing  criticism  of counsel,  parties or witnesses. The Court has  the  inherent power  to act freely upon its own conviction on  any  matter coming before it for adjudication but it is a general  prin- ciple of the highest importance to the proper administration of  justice  that derogatory remarks ought not  to  be  made against  persons  or authorities whose  conduct  comes  into consideration  unless  it is absolutely  necessary  for  the decision of the case to animadvert on their conduct.  [117F- G]     R.K. Lakshmanan v.A.K. Srinivasan, [1976] 1 SCR 204  and Niranjan  Patnaik  v. Sashibhushan Kar, [1986]  2  SCC  567, relied on.     3. No doubt each Judge is independent to form an opinion of  his own in deciding cases or in any phase of  the  deci- sional  function. But the facts of the present case  against the background of the views expressed by this Court  apropos to  the  earlier strictures against the  Government,  should have  warned  the Judge no matter how clear he  was  in  his mind, 112 not  to criticise the appellant. The avoidance of  even  the appearance of bitterness, so important in a Judge,  required him  not to cast aspersions on the professional  conduct  of the  appellant, especially when he held that the High  Court had  no jurisdiction to entertain the review  petition.  The observations made are not only without jurisdiction, but are also  wholly  and utterly unjustified and  unwarranted,  and hence expunged. [116C-1); 118B]     The Nature of the Judicial Process by Benjamin N. Cardo- zo, p. 168-169; Some Observations of Felix Frankfurter,  J., on  the Nature of Judicial Process of Supreme Court  Litiga- tion,  98  Proceedings AM Phil Society 233  (1954)  and  The Judiciary  and Constitutional Politics-Views from the  Bench by  Mark W. Cannon and David M.O. ’s Brien, p. 27,  referred to.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1537  of 1990     From the Judgment and Order dated 6.2.1989 of the Madhya Pradesh High Court in M.C.C. No. 213 of 1988.     K. Parasaran, P.P. Rao, Sushil Kumar Jain, Mrs. Pratibha Jain and Sudhanshu Alreya for the Appellant.     M.L.  Chansoria,  R.K.  Gupta,  K.K.  Gupta,  Dr.   A.M. Singhvi, Ashok Mathur and N. Waziri for the Respondents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special leave granted.     Mr. B.M. Lal, J. of the Madhya Pradesh High Court  while dismissing an apparently unsustainable review petition  has, however,  made certain derogatory remarks against  Mr.  A.M. Mathur, senior Advocate and also the Ex-Advocate General  of the State. Mr. Mathur has appealed to this Court for setting aside that order.     This  matter  pertains to a case which has  come  to  be known  as M.P. Liquor case. It was with regard to the  grant for construction of new distillaries by the policy  decision of  the  State  Government of Madhya  Pradesh.  That  policy decision was challenged before the High Court by way of writ petitions.  The Writ Petitions were allowed by the  Division Bench consisting of the Acting Chief Justice Mr. J.S.  Verma (as  he then was) and Justice B.M. Lal. In those writ  peti- tions, 113 Mr.  Mathur as Advocate-General appeared and argued for  the State Government. Learned Acting Chief Justice delivered the main  judgment in the writ petitions invalidating the  deci- sion of the Government on the ground that it violated  Arti- cle  14  of the Constitution. Justice B.M. Lal  delivered  a separate concurring opinion in which he made highly  dispar- aging  remarks attributing mala fides and underhand  dealing to  the State Government. Against the judgment of  the  High Court, several appeals including one by the State of  Madhya Pradesh  were filed before this Court. The appeal  preferred by  the  State was argued by the then  Attorney  General  of India  assisted  by the appellant. This Court.  allowed  the appeals  and set aside the judgment of the High  Court.  The decision of this Court has since been reported in 1987 1 SCR 1 (State of M.P. v. Nandlal Jaiswal & Ors.,).     Bhagwati, CJ., speaking for the Court in that case while expressing strong disapproval of the strictures made by B.M. Lal, J. observed (at p. 66): "We  may  observe in conclusion that Judges should  not  use strong and carping language while criticising the conduct of parties  of  their witnesses. They must act  with  sobriety, moderation  and  restraint. They must have the  humility  to recognise  that  they are not infallible and any  harsh  and disparaging strictures passed by them against any party  may be mistaken and unjustified and if so, they may do consider- able harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by B.M.  Lal, J. were totally unjustified and  unwarranted  and they ought not to have been made." On or about 3rd June 1988 i.e. after a delay of 738 days Mr. Promod Kumar Gupta, Advocate who had no connection whatsoev- er  with  the earlier litigation in the  writ  petitions  or appeals,  filed a review petition before the High Court.  He was  represented  by Mr. S. Dixit, Advocate. In  the  review petition it was inter alia alleged that the State Government by  committing  fraud  has procured the  judgment  from  the

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Supreme Court, thereby vitiating the most solemn proceedings of the Apex Court of the Nation. He has also filed an appli- cation No. 3858 of 1988 for interim findings on the question of fraud.     On 29 October, 1988, the matter was listed for admission before a Bench consisting of learned Judges Mr. C.P. Sen and Mr.  B.M. Lal. After arguments, C.P. Sen, J., seems to  have dictated his order in the 114 open Court dismissing the review petition. He expressed  the view  that  the petitioner has no locus standi to  file  the petition and the economically well-to-do parties to the writ petitions  who  lost their case before this  Court  did  not choose  to file any review petition. He also held  that  the petition  for  review was not maintainable before  the  High Court  since the decision of the High Court was reversed  by this  Court.  The petition was also held  to  be  hopelessly barred  by limitation and there was no sufficient cause  for condoning the inordinate delay.     B.M. Lal, J. did not pass any order on 29 October, 1988. He pronounced his order on 6th February 1989. In this inter- regnum  there was another application from Mr. Gupta. On  25 January  1989,  he  filed an application  in  the  aforesaid review petition requesting the Court to take judicial notice of some extract of the Vidhan Sabha proceedings and to  pass appropriate  strictures against the appellant. According  to him,  that  extract of the proceedings of the  Vidhan  Sabha would  lend  credence to his contention that the  State  has practised  fraud  on  the Court. That  application  was  not served on the appellant nor the Court gave him any  opportu- nity  to  file  his counter. It may be  mentioned  that  Mr. Mathur  has tendered his resignation as Advocate General  on 25  January 1989. On 6 February 1989, the  said  application was taken on record along with the documents annexed  there- by.  On the same day B.M. Lal, J. pronounced his order  dis- missing the review petition. The relevant portion of that order is as under: "While  briefing about the application for amendment of  the return to the Chief Minister Shri Arjun Singh, had Shri A.M. Matbut,  Advocate-General  acted  in bona  fide  and  honest manner,  the fraud on the Court would have been avoided.  So also the misleading press statement by the Chief Minister to the  Blitz would have been on true facts and this  situation would not have arisen; putting the Courts in an embarrassing position." Continued: "It  is the moral duty of a lawyer, much less  the  Advocate General,  to act faithfully for the cause of his client  and to  furnish information about the Court’s  proceedings  cor- rectly.  In  the  past the chair  of  Advocate  General  was adorned by glorious and eminent lawyers who never showed any sycophancy and never suffered from mosaifi. As such, the 115 action  on the part of the Advocate General, was not  befit- ting to the status of the High Office." Added: "It  appears that this was the reason that Shri A.M.  Mathur avoided filing reply to the petition and skilfully succeeded in  his  attempt to abstain himself from  the  case  on28.8. 1988, presumably, he had no courage to face the situation." Finally, rounded off the conclusion: "As  far as exercise of jurisdiction of this Court  is  con- cerned,  observing the judicial discipline  envisaged  under Article  141 of the Constitution and has been merged in  the decision of the Supreme Court particularly when the decision

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of this Court in State of Madhya Pradesh v. Nandial Jaiswal, case,  it  is for the petitioner, if he is  so  advised,  to vindicate his grievances before the Apex Court.           Learned  counsel further pointed out that  one  of the distiller’s application for modification of the order is sub  judice before the Apex Court. As such, in view  of  the observations made in A.R. Antulay’s, case [1988] SCC II  602 the  petitioner, if so advised, may approach the Apex  Court for getting redress."     From  the  foregoing  order it will  be  seen  that  the learned  Judge  seems  to have formed an  opinion  that  the appellant did not act honestly and bona fide in briefing the then Chief Minister Mr. Arjun Singh and if he had acted bona fide and in honest manner, the fraud on the Court would have been  avoided and the Chief Minister would not have given  a misleading  press statement. He has also remarked  that  the appellant did not act befitting with the status of the  High Office  of  the  Advocate General and he did  not  have  the courage  to  face the situation in the Court. Such  are  his conclusions,  or surmises in the review petition  which  was not  disposed  of on the merits but dismissed  for  want  of jurisdiction.     The  appellant’s complaint before us is that he  had  no opportunity to meet the allegations in the review  petition, much less as against averments in the subsequent application dated  25 January, 1989. He made it clear to the High  Court on 6 October 1988 and also 116 on  29 October 1988 that he entered appearance pursuance  to service  of  a copy of the review petition as per  the  High Court  rules, on the Advocate General’s office. He  has  not entered  appearance as such on behalf of the State or  other respondents.  He has, further, made it clear that there  was no ground for review and it deserved to be dismissed and  so he did not wish to enter appearance at that stage before the admission  of the review petition. The appellant appears  to be  correct in these statements and they are found  recorded in the Court proceedings dated 6 October, 1988.     It  may be noted that C.P. Sen, J. dismissed the  review petition  on the ground of maintainability,  limitation  and locus  standi of the petitioner. Thereafter the  application was  filed to pass strictures against the appellant  in  the light of the Vidhan Sabha proceedings. B.M. Lal, J. seems to have  acceded to that request. No doubt each Judge is  inde- pendent  to form an opinion of his own in deciding cases  or in  any phase of the decisional function. But the  facts  of the  present  case against the background of the  views  ex- pressed  by  this Court apropos to  the  earlier  strictures against the Government, should have warned B.M. Lal, J.,  no matter  how clear he was in his mind, not to  criticise  the appellant. The avoidance of even the appearances of  bitter- ness,  so  important  in a Judge required him  not  to  cast aspersions on the professional conduct of the appellant. Justice Cardozo of course said: "The great tides and currents which engulf the rest of  men, do  not turn aside in their course, and pass judges  by.  We like  to  figure to ourselves the processes  of  justice  as coldly objective and impersonal. The law, conceived of as  a real  existence, dwelling apart and alone,  speaks,  through the  voices of priests and ministers, the words  which  they have  no choice except to utter. That is an ideal of  objec- tive  truth  toward  which  every  system  of  jurisprudence tends   .....  It has a lofty sound; it is well  and  finely said; but it can never be more than partly true. "(1) Justice Felix Frankfurter, put it with a different emphasis:

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"Judges are men, not disembodied spirits. Of course a  Judge is not free from preferences or, if you will, biases. "(2) (1) The Nature of the Judicial Process by Benjamin N. Cardo- zo p. 168-169.      (2) Some observations of Felix Frankfurter, J., on  the Nature  of Judicial Process of Supreme Court  Litigation  98 Proceedings AM Phil Society 233 (1954). 117     It  is true that the judges are flesh and blood  mortals with individual personalities and with normal human  traits. Still  what  remains  essential in  judging,  Justice  Felix Frankfurter said: "First  and foremost, humility and an understanding  of  the range of the problems and (one’s) own inadequacy in  dealing with them, disinterestedness  .....  and allegiance to noth- ing except the effort to find (that) pass through precedent, through  policy, through history, through (one’s) own  gifts of insights to the best judgment that a poor fallible  crea- ture can arrive at in that most difficult of all tasks,  the adjudication  between  man and man, between man  and  state, through reason called law.(3)     Judicial  restraint and discipline are as  necessary  to the  orderly  administration of justice as they are  to  the effectiveness  of  the  army. The duty  of  restraint,  this humility  of  function  should be a constant  theme  of  our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of  the judiciary. Judicial restraint in this  regard  might better  be called judicial respect; that is, respect by  the judiciary.  Respect  to those who come before the  Court  as well to other co-ordinate branches of the State, the  Execu- tive  and  Legislature. There must be mutual  respect.  When these  qualities fail or when litigants and  public  believe that  the  judge has failed in these qualities, it  will  be neither good for the judge nor for the judicial process.     The Judges Bench is a seat of power. Not only do  judges have power to make binding decisions, their decisions legit- imate  the use of power by other officials. The Judges  have the  absolute and unchallenged control of the Court  domain. But  they cannot misuse their authority by intemperate  com- ments, undignified banter or scathing criticism of  counsel, parties  or  witnesses. We concede that the  Court  has  the inherent power to act freely upon its own conviction on  any matter coming before it for adjudication, but it is a gener- al principle of the highest importance to the proper  admin- istration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration  unless  it is absolutely  necessary  for  the decision  of the case to animadvert on their  conduct.  (See (i) R.K. Lakshmanan v.A.K. Srinivasan, [1976] I SCR 204  and (ii) Niranjan Patnaik v. Sashibhushan Kar, [1986] 2 SCC  567 at 576.      (3)  The Judiciary and  Constitutional  Politics--Views from  the Bench by Mark W. Cannon and David M.O.’s Brien  p. 27. 118     Learned  Judge  having held that the High Court  has  no jurisdiction  to entertain the review petition ought not  to have commented on the professional conduct of the  appellant and  that too without an opportunity for him. We  regret  to note  that the observations made and aspersions cast on  the professional  conduct of the appellant are not only  without jurisdiction, but also they are wholly and utterly  unjusti- fied and unwarranted.     We  therefore,  allow  the appeal and  expunge  all  the

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remarks  made by B.M. Lal, J. against the appellant  in  the impugned order.     Normally, we would have awarded heavy costs against  the respondent but since the respondent is also an Advocate,  we refrain from making any order as to costs. G.N.                                        Appeal allowed. 119