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PETITIONER: P.N. DUDA

       Vs.

RESPONDENT: v. P. SHIV SHANKAR & OTHERS

DATE OF JUDGMENT15/04/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR 1208            1988 SCR  (3) 547  1988 SCC  (3) 167        JT 1988 (2)   102  1988 SCALE  (1)728  CITATOR INFO :  RF         1989 SC 190  (20)

ACT:      Contempt of Courts Act, 1971- Praying for initiation of proceedings for  Contempt of  Supreme  Court  under  section 15(1)(a) and (b) of-Read with rule 3(a), (b) and (c) supreme Court Contempt  of Court Rules, 1975, in respect of a speech delivered  at   a  meeting   of  Bar  Council,  reported  in newspapers.

HEADNOTE:      The respondent No. 1, Shri P. Shiv Shankar, Minister of Law, Justice  and Company  Affairs  at  the  relevant  time, delivered a  speech at  a meeting  of  the  Bar  Council  of Hyderabad. The  petitioner alleged  that in  that speech the respondent No.  1 had  made  statements  derogatory  to  the dignity of  the Supreme  Court,  attributing  to  the  Court partiality  towards  affluent  people  and  using  extremely intemperate and  undignified language,  and that  the speech contained slander  cast on this Court both in respect of the Judges and  the working  of the Court. He stated that he had approached the  Attorney General for India and the Solicitor General of  India  to  give  their  consent  for  initiating Contempt proceedings. The Attorney General and the Solicitor General having  declined to  deal with  this prayer  of  the petitioner, an  application for initiation of Contempt under section 15(1)(a)  and (b)  of the  Act read with Explanation (1) and  Rule 3(a),  (b) and  (c) of the contempt of Supreme Court Rules,  1975, was  made, wherein Shri P. Shiv Shankar, the  Attorney  General,  the  Solicitor  General  were  made parties. The  Court issued notice. In response, Shri P. Shiv Shankar filed  an affidavit,  stating that  he had delivered the  speech   on  the   subject  of  accountability  of  the Legislature,  Executive  and  the  Judiciary  and  had  made comments on  the accountability  of the three organs and the theoretical implications  thereof, and  that he had intended no  disrespect   to  any   of  the   institutions   or   its functionaries much  less the  Supreme Court.  It was further stated that  the  Contempt  petition  was  not  maintainable without the consent of the Attorney General or the Solicitor General. In the meantime, Shri R.N. Trivedi, Advocate, filed

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an application,  claiming right  to be impleaded as a party, stating that  the Attorney General and the Solicitor General should not  have been  made parties to the comtempt petition and that the alleged non-exercise of the jurisdiction by the Attorney-General and the Solicitor General had 548 not constituted  contempt within the meaning of section 2(c) of the Act.      Declining  to  initiate  the  contempt  proceeding  and dismissing the  petition and  disposing of  the  application filed by Shri R.N. Trivedi, the Court, ^      HELD: Per Sabyasachi Mukharji, J.:      Before deciding  the question  whether this application was maintainable without the consent of the Attorney General or the  Solicitor General,  as contended  by Dr.  Chitale on behalf of  Shri Shiv  Shankar, and  the question whether the Attorney General  and the  Solicitor General  could be  made parties to the Contempt application and whether their action or inaction was justiciable at all in any proceeding and, if so, in what proceedings it was necessary to decide the basic question whether the speech made by Shri P. Shiv Shankar had amounted to  contempt of  this Court,  or  in  other  words, whether the  speech had  the effect  of bringing  this Court into disrepute. [562H; 563A-B]      Administration of justice and Judges are open to public criticism   and   public   scrutiny.   Judges   have   their accountability to  the society and their accountability must be judged by their conscience and oath of their office, that is to  defend and  uphold  the  Constitution  and  the  laws without fear  and favour.  This the  Judges must  do in  the light  given  to  them  to  determine  what  is  right.  Any criticism about  the judicial  system or  the  Judges  which hampers the  administration of  justice or  which erodes the faith  in  the  objective  approach  of  Judges  and  brings administration of  justice into  ridicule must be prevented. The contempt of Court proceedings arise out of that attempt. Judgments can  be criticised, motives of the Judges need not be attributed.  It brings the administration of Justice into deep disrepute.  Faith in  the administration  of justice is one of  the pillars  through  which  democratic  institution functions and  sustains. In  the free market place of ideas, criticism about  the judicial  system or  Judges  should  be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how the courts should approach the  powers vested  in them  as judges  to punish a person for  an alleged  contempt, be  it by taking notice of the matter  suo motu  or at  the behest  of the  litigant or lawyer. [563C-F]      In this case, the Court had examined the entire speech. Shri P.  Shiv Shankar  had examined the class composition of the Supreme  Court. His  view was that the class composition of any instrument indi- 549 cated its  predisposition, prejudices.  This is  inevitable. The intuition  more subtle  than major premise, on which the decision will  depend, is  the pride  and the prejudice of a human instrument  of a  Judge through  which objectively the Judge seeks to administer justice according to law. So, in a study of  accountability, if class composition of the people manning  the  institution  is  analysed,  there  has  to  be forewarning about  certain inclination and it cannot be said that an  expression or  view or  propagation  of  that  view hampers  the   dignity  of   the  Courts   or  impairs   the administration of Justice. [565F-H; 566A]

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    It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the Court and in the majesty of  law and  that has  been caused  not so  much  by scandalising remarks  made by  politicians or  ministers but the inability  of the  courts of  law to  deliver quick  and substantial justice  to the  needy. It  is a criticism which judges and  lawyers must make about themselves. We must turn the search light inwards. At the same time, the Court cannot be oblivious  of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in  Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3  S.C.R. 497,  where  it  was  held  that  fair  and reasonable  criticism  of  a  judgment  which  is  a  public document or  which is a public act of a Judge concerned with administration of  justice would not constitute contempt. In fact,  such   a  fair   and  reasonable  criticism  must  be encouraged because  after all  no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment  is incorrect  or an  error has  been committed with regard to law or established facts. But when it is said that  the   Judge  had   a  predisposition   to  convict  or deliberately took  a turn  in discussion of evidence because he had  already made  up his  mind to convict the accused or has a  wayward bend of mind, is attributing motives, lack of dispassionate  and   objective  approach  and  analysis  and prejudging of  issues, that  would bring  administration  of justice into  ridicule. Such  criticism sometime  interferes with the  administration of  justice and that must be judged by the  yardstick whether  it brings  the administration  of justice into  ridicule or hampers administration of justice. After all,  it cannot  be  denied  that  pre-disposition  or subtle prejudice  or unconscious prejudice or what in Indian language is called "Sanskar" are inarticulate major premises in decision  making process. That element in decision making process cannot be denied, it should be taken note of. [569B- G]      It has  to be  borne in  mind,  as  has  been  said  by Banjamin N.  Cardozo in "The Nature of the Judicial Process" that the judge as the 550 interpreter for  the community of its sense of law and order must supply  omissions, correct  uncertainties and harmonize results with  justice through  a method  of  free  decision. Courts are to "search for light among the social elements of every kind  that are  the living force behind the facts they deal with". [569G-H; 570A]      Though at  places, intemperate,  the statement  of  the Minister  in   this  case   cannot  be  said  to  amount  to interference with  the  administration  of  justice  and  to amount to  contempt of  court. The Administration of justice in this  country stands  on surer foundation. In the speech, it appears  that Shri  P. Shiv Shankar was making a study of the attitude  of this  Court. It was stated that the Supreme Court was  composed of  the element  from the  elite  class. Whether it is factually correct or not is another matter. In public life, where the champions of the down trodden and the politicians are  mostly from  the so-called  elite class, if the class composition is analysed, it may reveal interesting factor  as  to  whether  elite  class  is  dominant  as  the champions’ of  the oppressed  or of  the social legislations and the  same is  the position  in the  judiciary.  But  the Minister went  on to  say that  because the Judges had their ’unconcealed sympathy  for the  haves’ they  interpreted the expression  ’compensation’  in  the  manner  they  did.  The expression ’unconcealed’  was unfortunate. But this was also

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an expression  of opinion  about an  institutional  pattern. Then, the  Minister went  on to say that because of this the word ’compensation’  in Article  31 was interpreted contrary to the  spirit  and  intendment  of  the  Constitution.  The Constitution had  to be  amended to remove this ’oligarchic’ approach of  the Supreme  Court with  little or no help. The inter-action  of   the  decisions  of  this  Court  and  the constitutional amendments had been viewed by the Minister in his speech,  but that  was nothing  new. This by itself does not affect the administration of justice. On the other hand, such a  study is  perhaps important for the understanding of the evolution  of the constitutional development. Criticisms of judgments  is permissible  in a  free  society.  [573C-D; 575E-H; 576A-B,F]      There was  one paragraph  which appeared  to be  rather intemperate, it read thus:      "Anti-social  elements   i.e.  FERA   violators,  bride burners and  whole hordes  of reactionaries have found their heaven in the Supreme Court". [576F-G]      That, if  true, is a criticism of the laws. The Supreme Court, as it is bound to do, has implemented the laws and in implementing the laws it 551 is  a   tribute  to  the  Supreme  Court  that  it  has  not discriminated between  persons and  persons.  Criminals  are entitled to be judged in accordance with law. If anti-social elements and  criminals have  benefited by  decisions of the Supreme Court,  the  fault  rests  with  the  laws  and  the loopholes in the legislation. The Courts are not deterred by such criticisms. [576G-H]      Bearing in  mind the  trend in  the law  of contempt as noticed before,  as well as in some of the decisions noticed by Krishna  Iyer, J. in the case of Re: S. Mulgaokar, [1978] 3 S.C.R.  162, the speech of the Minister read in its proper perspective, did  not bring  the administration  of  justice into disrepute  or impair administration of justice. In some portions of  the speech,  the language  used could have been avoided by  the Minister.  The Minister  perhaps could  have achieved his  purpose by  making his  language mild  but his facts deadly.  With these observations, it must be held that there was  no  imminent  danger  of  interference  with  the administration of justice, nor of bringing administration of justice into  disrepute. In  that view, it must be held that the Minister was not guilty of contempt of Court. [577A-C]      Another question  of law  of some importance had arisen in this  matter. Under the Act, in case of criminal contempt other than  a contempt  referred to  in section 14 which was not this  case, namely  a contempt  of this  Court or a High Court, this  Court or  the High Court may take action either on its  own motion  or on  a motion  made by  the  Advocate- General, which  in relation to this Court means the Attorney General or  the Solicitor-General  or any  other person with the consent  of the  Attorney-General in terms of section 15 of the  Act. Cognizance for criminal contempt could be taken by the  Court by three methods, namely on its own motion, or on the  motion of  the Attorney-General  or  the  Solicitor- General, or  on the  motion of  any other  person  with  the consent of  the Attorney  General. The only course open to a citizen for  initiating proceedings  for contempt is to move for  consent  of  the  Attorney  General  or  the  Solicitor General. The  question is,  does it  cast a  duty  upon  the Attorney General  or the  Solicitor General  to  consent  to application for  grant  of  such  consent  and  whether  the granting or  non-granting of  such consent is justiciable by the Court and if so whether the question of non-granting can

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be brought  up in  a rolled application moved by a person to bring it  to the notice of the Court to take action suo motu and at  the same  time  to  consider  whether  in  the  same proceedings the  action  of  the  Attorney  General  or  the Solicitor General in granting or not granting consent can be challenged  or   it  must   be  always   by  an  independent proceeding. The consent certainly is linked up with 552 contempt proceedings.  In this  case, the Minister had taken the plea  that consideration of this case could not be taken up because  there was no consent of the law officers. Did it or did  it not  tend to  interfere with  the due  course  of judicial proceedings in terms of clause (ii) of section 3(c) of the  Act? The Attorney General and the Solicitor General, in  respect   of  this  Court,  occupy  positions  of  great importance and  relevance. The Attorney General is a friend, philosopher, and  guide of  the Court  (Article  76  of  the Constitution).  Yet,   the  Act,   vests  him  with  certain discretions. All  statutory discretions are justiciable in a society governed  by the  rule of  law. This  Court  is  the finder and  interpreter of  law in cases of this nature with the assistance  of Attorney  General, and, in his absence or inability, the Solicitor General. [577C-H; 578A-C]      The petitioner in this case had approached the Attorney General and  the Solicitor  General to  look into the matter and accord  sanction. The  conduct of the respondents Nos. 2 and 3  according to  the petitioner,  amounted to refusal to exercise jurisdiction vested in them by law, and, therefore, they were  impleaded as  parties in  the present proceedings (as necessary  and/or proper  parties) in  order  that  they might get an opportunity to justify the stand they had taken in the  matter  flowing  fr  m  their  refusal  to  exercise jurisdiction. [580E-G]      The question  is whether  there is a duty cast upon the Attorney General  or the  Solicitor General  to consider the question of  granting consent  in terms  of  clause  (b)  of section 15(1) of the Act, and if in fact such consent is not granted, that  question can  be considered  by the Court. It was not  a question  of making  the Attorney  General or the Solicitor General  a party  to a  contempt proceeding in the sense that they were liable for contempt, but if the hearing of the  contempt proceedings  is better  proceeded  with  by obtaining  the  consent  of  the  Attorney  General  or  the Solicitor General  and the  question  of  justiciability  of giving the  consent is  inter-linked on the analogy of order II, Rule  I of  the  Code  of  Civil  Procedure,  which  has application to  a civil  proceeding and  not to  a  criminal proceeding, it  is permissible  to go into this question. In the case  of  Conscientious  Group  v.  Mohammed  Yunus  and others, [1987] 3 S.C.C. 89, this Court went into the reasons given by  the Solicitor  General declining consent, and held on examination  that such consent was properly refused. This is a  complete answer  to the  contention that in a contempt petition the grounds for either giving consent or not giving consent or  for not  considering the application for consent are justiciable  and that  question cannot  be gone  into in that  proceeding  though  it  must  be  emphasised  in  that proceeding that  11 the  Solicitor General  was not  made  a party to the proceeding. In his 553 Lordship’s opinion,  it will  be  more  appropriate  for  an officer of  the Court  whose action is being investigated to be made  a party  in the  proceedings, otherwise it would be violative of  the rule  of audi  alteram partem.  Discretion vested in  the law  officers of  this Court to be used for a

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public purpose  in a  society governed  by rule  of  law  is justiciable. It  would be more appropriate that it should be gone into  upon notice to the law officer concerned. It is a case where  appropriate ground  for refusal  to act  can  be looked into by the Court. It cannot be said that the refusal to grant  consent decides no right and it is not reviewable. Refusal to  give consent closes one channel of initiation of contempt out  of the  three different  channels, namely, (1) the Court  taking cognizance  on its  own motion; (2) on the motion by the Attorney General or the Solicitor General; and (3) by  any other  person with the consent in writing of the Attorney General  or the  Solicitor General.  In this  case, apparently the  Attorney General  and the  Solicitor General had not moved on their own. The petitioner could not move in accordance with  law without  the consent  of  the  Attorney General and  the Solicitor General, though he has a right to move and  the third is the Court taking notice suo motu. But irrespective of  that there  was the  right granted  to  the citizen of  the country  to move  a motion with the consent. Indubitably, cognizance could be taken suo motu by the Court but the  members of  the public  have also the right to move the Court. That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or  the Solicitor  General, and  if that  consent is withheld without  reasons or  without consideration  of that right granted  to any  other person  under section 15 of the Act, that  could be  investigated in  an application made to the Court. [581B-H; 582A-C; 584C-D]      Where an  appeal  comes  to  this  Court,  which  is  a judicial decision,  the judges who rendered the decision are not necessary  parties. There is no lis between a suitor and a judge  in a  judicial adjudication.  But the  position  is entirely different  where there  is a  suitor  claiming  the exercise of a statutory right in his favour which he alleges is hampered  by an  official act  of a named official in the Act. In  respect  of  justiciability  of  that  act  of  the official there is a lis and if that lis is inter-linked with the proceeding for contempt, there is warrant for making him party in  that proceeding  though the prayers and the notice must be  issued differently.  The statute gives a right to a suitor to  move the  Court in  one of  the contingencies for contempt or  bring to  the notice  of the Court the contempt with the  advice and  assistance of  the Attorney General or the Solicitor  General. If  such right  is not considered on relevant materials,  then, that action is justiciable in the appropriate proceeding for contempt. [585C-G] 554      Having considered  the peculiar facts and circumstances of this  A case and the allegations of bias made against the Attorney general and the Solicitor General, it appeared that the  Attorney   General  and  the  Solicitor  General  acted properly in  declining to deal with the matter and the Court could deal  with the matter on attention being drawn to this Court. In  that view  of the matter, the petition failed and the application of Shri Trivedi was accordingly disposed of. [588D-E]      Per S. Ranganathan, J. (Concurring)      The impugned comments were made by the respondent No. 1 in the  course of  his key  note address  at  a  seminar  on ’Accountability of  the Legislature, Executive and Judiciary under the  Constitution  of  India’.  The  speech,  and,  in particular,   some   ’sevoury’   passages   therefrom   were highlighted in the Press. The speech had been made before an audience comprising essentially lawyers, Jurists and Judges. It represented  primarily an  exercise  by  the  speaker  to

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evaluate  the   roles  of  the  executive,  legislature  and judiciary in  the country  since its independence and to put forward  the   theory  that,  like  the  executive  and  the legislature, the  judiciary must  also be accountable to the people. [588F-H; 589A]      The petitioner  contended that  certain passages in the speech seemed  to attribute a sub-conscious partiality, bias or predeliction  in  the  Judges  in  disposing  of  various matters before  them and that those comments fell within the scope of  the decision  of this  Court in  the case  of E.M. Sankaran Namboodripad  v. T. Narayanan Nambiar, [1970] 2 SCC 325. [589A-B]      It was  true, as pointed out by Sabyasachi Mukharji, J. that there  were passages  in the  speech which  torn out of context might be liable to be misunderstood, but reading the speech as a whole and bearing in mind the select audience to which it  was addressed, his Lordship agreed with Sabyasachi Mukharji, J.,  that no  contempt  had  been  committed.  The affidavit of  the respondent No. 1 should be accepted at its face  value   that  the   speech  was   only  a  theoretical dissertation and  that he  intended no  disrespect  to  this Court or its functioning. [589D-E]      The second  aspect of  the case on which arguments were addressed before  the Court,  related to the procedure to be followed in  such matters. This aspect raised some important issues. [589E-F]      The  criminal   miscellaneous  petition  filed  by  the petitioner purported  to be only "information" u/s 15 (1)(a) and (b) of the 555 Contempt of  Courts Act,  1971 (’the  Act’). The  petitioner stated that  he came  to know from a report in the newspaper that the  respondent No. 1, in the course of his speech, had made certain  statements which  randered him  liable  to  be proceeded against for contempt of court, and, appending what was stated to be a full text of the said speech published in the "Newstime",  prayed for  initiation of contempt of court proceedings suo  motu under  s. 15(1)  of  the  Contempt  of Courts Act,  1971, read  with rule 3(a) of the Supreme Court (Contempt of Court) Rules, 1975. Though the respondent No. 1 only, according  to the  petitioner, was  to be charged with contempt, the petitioner had added three more respondents to the criminal  miscellaneous petition,  namely, the  Attorney General for  India (by name), the Solicitor General of India (by name)  and Sri  Ramji Rao,  Editor  of  "Newstime".  The petition raised  certain questions of general importance for consideration  to  evolve  a  proper  procedure  for  future guidance in these matters. [589F-H; 590A-B]      The petitioner  sought to  charge respondent No. 1 with "Criminal Contempt"  under Section  15 of  the  Contempt  of Courts Act, 1971.      A conjoint  perusal of  the Act  and the  rules of  the Supreme  Court  to  regulate  proceedings  for  Contempt  of Supreme Court  makes it  clear that  so far as this Court is concerned, action  for contempt may be taken by the Court on its own  motion or on the motion of the Attorney General (or the Solicitor  General) or  of any  other  person  with  his consent in  writing. There  is no difficulty where the Court or the  Attorney General chooses to move in the matter. When a private  person desires  that such action should be taken, he may  place the  information in  his possession before the Court, requesting  the Court to take action; or he may place the information  before the  Attorney General requesting him to take  action; or  he may place the information before the Attorney General  requesting him  to permit  him to move the

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Court. In  this case,  the petitioner  alleged that  he  had failed in  the letter  two courses,  and he  had moved  this ’petition’ praying  that this  Court should  take  suo  motu action. On  this ’petition’,  no proceedings  could commence until and unless the Court considered the information before it and decided to initiate proceedings. [592F-H;593A-B      The form  of a  criminal miscellaneous petition styling the informant  as the  petitioner  and  certain  persons  as respondents is inappropriate for merely lodging the relevant information before  the Court under rule 3(a) of the Supreme Court (Contempt  of Court) Rules. The proper title of such a proceeding should  be "In re .. (the alleged contempt)". The direction given by the Delhi High Court in 556 Anil Kumar  Gupta v.  K. Subba  Rao, ILR 1974 Delhi 1 that " ........ if  any information is lodged even in the form of a petition inviting  this Court  to take  action u/s 15 of the Contempt of  Courts Act  or Article 212 of the Constitution, where the  informant is  not one  of the  persons  named  in section 15  of the  said Act,  it should  not be styled as a petition and  should not be placed before the judicial side. Such a  petition should  be placed  before the Chief Justice for orders  m chambers  and the  Chief  Justice  may  decide either by  himself or  in consultation with the other judges of  the   Court  whether  to  take  any  cognizance  of  the information ........ " sets out the proper procedure in such cases and  may be  adopted in future as a practice direction or as  a rule,  by this  Court and  the High Court. However, this petition having been filed and similar petitions having been perhaps  entertained earlier  in  several  courts,  his Lordship did  not  suggest  that  this  petition  should  be dismissed on this ground. [593C-H; 594A-B]      In this  case, apart from filing his information in the form of  a petition, the petitioner had added as respondents to the  petition not  only the  alleged contemner  but three more  persons  i.e.  the  Attorney  General,  the  Solicitor General and  Shri Ramoji  Rao,  Editor  of  "Newstime".  The Attorney General  and Solicitor  General were  stated to  be impleaded in  order that  they might  get an  opportunity to justify  their   stand  in   refusing  to   exercise   their jurisdiction to grant consent to him to enable him to file a petition under  section 15(1)  read with  rule 3(c), and the fourth respondent  was only a possible witness, stated to be impleaded only  to prove  the  authenticity  of  the  speech reported in  the "Newstime"  in the event of a disclaimer of the respondent No. 1. This could not be done. This petition, as filed,  was for  initiating proceeding  for contempt only against respondent No. 1. If the petitioner had any cause of action against  the other persons, such persons were neither necessary nor  even proper parties to this petition, because such cause  of action was of a purely civil nature. At best, the petitioner  could say  that he was entitled to a writ of mandamus  directing   the  Attorney  General  and  Solicitor General to discharge their statutory obligation or a writ of certiorari  to   quash  their  decision  in  case  they  had unreasonably withheld  their  consent  to  the  petitioner’s filing  a   petition.  This   remedy  was   to   be   sought independently against  these  persons  by  a  separate  writ petition. He  could not  seek relief  against  the  Attorney General and  the Solicitor  General by  a petition mixing up his criminal  charge against  respondent No. 1 and his civil grievance against  the Attorney  General and  the  Solicitor General.  He  could  not  get  over  the  objection  to  the maintainability of  a petition,  i.e. want of cousent of the Attorney General  or the  Solicitor General,  merely by  the

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device of adding them as respondents 557 to the  petition; no  relief was sought against the Attorney or the Solicitor A General. This petition, if treated as one under rule  3(c) was not maintainable for want of consent by the Attorney General and the Solicitor General and had to be dismissed as  such. The  inclusion of  respondents 2 to 4 as respondents to  the petition was totally unjustified, and if the petition was to be taken as merely laying of information under rule  3(a), the  names of  respondents 2  to 4 must be struck off  from the array of parties. His Lordship directed accordingly. Notice  of the  petition should  not have  been issued in  the form  it was  issued, to the Attorney General and the  Solicitor General  since there was no allegation of contempt and  no relief had been sought against them. [594B- H; 595A-D]      The petitioner  had submitted that the Attorney General and  the   Solicitor  General   had  acted  unreasonably  in declining to act in this case. In addition to merely placing the   information    with   him    before    the    Attorney General/Solicitor General  and seeking  their consent to his filing a  petition before the Court, he had written a letter containing  a   lot  of  irrelevant  matter,  whereby  while purporting to  seek the  consent  of  the  Attorney  General Solicitor General,  he had simultaneously expressed his lack of confidence  in their  judgment and  ability to  discharge their duties objectively and impartially. In this situation, the  Attorney   General/Solicitor  General  decided  not  to exercise their statutory powers at all one way or the other. the Attorney  General/Solicitor General acted rightly and in the best  traditions of  their office  by declining  to deal with the  petitioner’s  request.  The  petitioner  had  cast aspersions against  both the  law officers,  doubting  their ability to  act  objectively  and  this  stultified  by  his conduct this course indicated by the Statute. [598G-H; 599A- C,F]      As to the question whether, in a case where neither the Attorney General nor the Solicitor General was in a position to consider a request under section 15(1)(c), the petitioner could seek  the consent  of some  other law officers, as the Additional Solicitor General, it was not open to him to seek such consent,  as under  section 15,  the written consent of only those  officers as have been specifically authorised by the section  would be  taken  note  of  for  entertaining  a petition under the section. [599G-H; 600A-B]      Summing up the conclusion-      (a) This  petition,  if  treated  as  and  filed  under section 15(1)  read with  rule 3(a)  was not in proper form, and if  treated as  one filed under rules 3(b) and 3(c), was not maintainable as it was not filed by the 558 Attorney General/Solicitor  General or any other person with his consent; [600C]      (b) In  either event,  the petitioner  should not  have added to  the petition  respondents other  than the  person, alleged to  be guilty  of Contempt of Court, and their names should be deleted from the array of the Parties; [600D]      (c) In  case  the  Attorney  General/Solicitor  General refuse consent  or decline  to act,  their decision  is  not judicially  reviewable  and  a  petitioner’s  remedy  is  to approach the Court for action under rule 3(a); [600E]      (d)  In   this  case,  the  Attorney  General/Solicitor General  acted  properly  in  declining  to  deal  with  the petitioner’s application either way, and [600F]      (e) This  petition was  nothing more  than  information

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under rule  3(a) on which this Court might or might not take suo motu action and there was no need to initiate proceeding against the respondent No. I for Contempt of Court. [600F-G]      Ambard v.  Attorney General  for Trinidad  and  Tobago, [1936] A.C.  322, 325;  E.M. Sankaran  Namboodiripad  v.  T. Narayanan Nambiar, [1971] 1 SCR 697-(1970) 2 SCC 325; Joseph Loohner v.  People of  the State  of New  York, 49  Lawyers’ Edition 195-198 U.S. 1904; Re: Shri S. Mulgaokar, [1978] SCR 162; New  York Times Company v. L.B. Sullivan, 376 U.S. 254; Regina v. Commissioner of Police of the Metropolis, Ex Parte Blackburn, [1968]  2 W.L.R. 1204; Special Reference No. I of 1964, [1965]  1 S.C.R.  413; Shri  Baradakanta Mishra v. The Registrar of  Orissa High  Court and  another, [1974]  1 SCC 374; Ram Dayal Markarha v. State of Madhya Pradesh, [1978] 3 SCR 497;  Conscientious Group  v. Mohammed Yunus and others, [1987] 3  SCC 89  J.T. 1987  (2) 377;  National Anthem case, [1986] 3 SCC 615; Vassiliades v. Vassiliades and others, AIR 1945 P.C.  38; S.K.  Sarkar v. V.C. Misra, [1981] 2 SCR 331; C.K. Daphtary  and others v. O.P. Gupta, and another, [1971] Suppl. S.C.R.  76; G.N. Verma v. Hargovind Dayal and others, AIR 1975  Allahabad 52;  B. K.  Kar v. The Chief Justice and his Companion  Judges of  the Orissa  High Court and others, [1962] 1  SCR 319;  Attorney General  v.  Iyimes  Newspapers Ltd., [1973]  3 All.  E.R.  54;  Indian  Express  Newspapers (Bombay) Pvt.  Ltd. and  others etc.  v. Union  of  India  & others, [1985]  1  SCC  641;  Gouriet  and  others  v.  H.M. Attorney General,  [1978] Appeal Cases 435; Gouriet v. Union of Post office Workers, [1978] Appeal cases 435; 559 Gouriet v.  Union of  Post offices  Workers & Ors., [1977] 1 Q.B. 729  to 752;  Rajagopal v.  Murtza Mutjahdi,  [1974]  1 Andhra Law  Times 170;  N. Venkataramanappa  v. D.K. Naikar, A.I.R. 1978  Karnataka 57; Anil Kumar Gupta v. K. Subba Rao, ILR 1974  Delhi 1  and A.G.  v. Times  Newspapers, [1974] AC 277, referred to.

JUDGMENT:      CRIMINAL ORIGINAL  JURISDICTION: Criminal Miscellaneous Petition No. 260 Of 1988.      Under Section  15(1)(a) and  (b)  of  the  Contempt  of Courts Act,1971  read with  its  explanation  (1)  and  Rule (3)(a), (b)  and (c)  of Contempt  of Supreme  Court  Rules, 1965.      Randhir Jain for the Petitioner.      B.  Datta,   Additional  Solicitor  General,  Dr.  Y.S. Chitale,  A.K.  Ganguli,  N.  Nettar,  G.S.  Narayan,  Gopal Subramanian, Mukul Mudgal, P.H. Parekh, Sanjay Bharthari and R K. Joshi for the Respondents.      The following Judgments of the Court were delivered:      SABYASACHI MUKHARJI,  J. By  an order dated 15th March, 1988  we  declined  in  this  matter  to  initiate  contempt proceedings under  section 15(1) (a) and (b) of the Contempt of Courts Act, 1971 (hereinafter called ’the Act’) read with rule 3(a),  (b) and  (c) of  the Supreme  Court Contempt  of Court Rules,  1975. We  also on  that date  disposed of  the application for  intervention filed by Shri R.N. Trivedi. We stated that  we will  indicate our  reasons  by  a  separate judgment. We do so herein      Shri P.  Shiv Shankar  who at the relevant time was the Hon’ble  Minister  for  Law,  Justice  and  Company  Affairs delivered a  speech before  a meeting  of the Bar Council of Hyderabad on  28th November, 1987. Shri P.N. Duda, who is an advocate practising  in the  Supreme Court,  has  drawn  our

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attention to  that speech.  According to him, by that speech respondent No.  1, Shri  P. Shiv Shankar has made statements against the  Supreme  Court  which  are  derogatory  to  the dignity  of   this  Court,   attributing  this   Court  with partiality towards  economically affluent  sections  of  the people and has used language which is extremely intemperate, undignified, and  unbecoming of  a person of his stature and position It  was stated  that Shri  P. Shiv Shankar formerly held the  office of  a Judge  of the  High Court  before  he resigned and took to politics. 560      We have  read the entire speech. It is not necessary to set out  the A  entire speech.  The relevant portions of the said speech for the present purpose are as follows:           "(a) The  Supreme Court  composed of  the  element           from  the   elite  class   had  their  unconcealed           sympathy for  the haves  i.e. the  Zamindars. As a           result, they  interpreted the  word ’compensation’           in Article  31 contrary  to  the  spirit  and  the           intendment  of  the  Constitution  and  ruled  the           compensation must  represent  the  price  which  a           willing  seller  is  prepared  to  accept  from  a           willing buyer  The entire  programme of  Zamindari           abolition suffered a setback. The Constitution had           to be amended by the 1st, 14th and 17th Amendments           to remove  this oligarchic approach of the Supreme           Court with  little or  no help.  Ultimately,  this           rigid  reactionary   and  traditional  outlook  of           property, led  to the  abolition of  property as a           fundamental right."      He inter alia further observed:           "(b) Holmes  Alexander in  his column  entitled ’9           Men of  Terror Squad’ made a frontal attack on the           functions of  the U.S.  Supreme Court. It makes an           interesting reading:                ’Now can you tell what that black-robed elite                are going  to do next. Spring more criminals,                abolish more  protections.  Throw  down  more                ultras. Rewrite  more laws. Chew more clauses                out of  the Constitution. May be, as a former                Vice-President once said, the American people                are too  dumb to  understand, but I would bet                that the  outcropping of  evidence at the top                in  testimony   before  the  US  Senate  says                something about  the swelling  concern  among                the people themselves.’                Should we  not ask  how true Holmes Alexander                was in the Indian context."      The Minister further stated:           "(c) Twenty  years of  valuable time  was lost  in           this confrontation  presented by  the Judiciary in           introducing  and   implementing   basic   agrarian           reforms for removal of poverty 561           what is  the ultimate  result. Meanwhile  even the           political will  seems to  have given  way and  the           resultant effect  is the  improper and ineffective           implementation of  the land  reform  laws  by  the           Executive  and  the  Judiciary  supplimenting  and           complementing each other."      It was further stated by him:           "(d)   The    Maharajas   and   the   Rajas   were           anachronistic in independent India. They had to be           removed and  yet the  conservative element  in the           ruling party  gave them  privy  purses.  When  the

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         privy purses  were abolished,  the Supreme  Court,           contrary to  the whole  national upsurge,  held in           favour of the Maharajas".           "(e) Madhadhipatis like Keshavananda and Zamindars           like Golaknath  evoked a  sympathetic cord nowhere           in the  whole country  except the Supreme Court of           India. And  the bank magnates, the representatives           of the  elitist  culture  of  this  country,  ably           supported by  industrialists, the beneficiaries of           independence,  got   higher  compensation  by  the           intervention of  the  Supreme  Court  in  Cooper’s           case. Antisocial  elements  i.e.  FERA  violators,           bride burners  and a  whole horde of reactionaries           have found their heaven in the Supreme Court."      Shri P.N.  Duda brought  the newspaper  version of  the said speech  to our  notice. He further stated that the said speech contains  slander which  was cast on this Court, both in respect  of the  Judges and  its working.  It was alleged that Shri  P. Shiv  Shankar has  done this  to  malign  this Court. Shri  Duda further  stated that he read the speech in the News  Times and  he had  approached the learned Attorney General of  India and the learned Solicitor General of India to give  their consent  for initiating contempt proceedings. In those  circumstances, the petitioner claimed that he also made the Editor and Publisher of the newspaper-News Times as one of the respondents. The learned Attorney General and the learned Solicitor  General have  declined to  deal with this prayer of  the petitioner  for the  reasons  stated  in  the letter which is an annexure to this petition. We shall refer to that  part of the letter later. In those circumstances an application for initiation of contempt entitled "Information under  Section  15(1)(a)  and  (b)  of  the  Act  read  with Explanation (19  and Rule  3(a), (b)  and (c) of Contempt of Supreme Court Rules, 1975" in the matter of said Shri 562 P.N. Duda was made wherein Shri P. Shiv Shankar, the learned A Attorney  General, the  learned Solicitor  General and the Editor of  News Times  were made  parties.  The  application having been  moved before  this Court on 10th February, 1988 we directed  issue of  notice returnable on 15th March, 1988 to the  respondents, namely,  Shri P.  Shiv Shankar, Shri K. Parasaran, Shri  Milon Banerji  and Shri  Ramji Rao, Editor, News Times confined only to the question to consider whether action, if  any, need  be taken  on the said petition of the petitioner. We  requested  the  First  Additional  Solicitor General, Shri  B. Datta to appear as Amicus Curiae to assist the Court.  On 11th  February, 1988  Shri Duda mentioned the matter and  this Court  clarified that  the respondents need not appear in the first instance in person. In the meantime, pursuant to  the notice  Shri P.  Shiv Shankar  has filed an affidavit on  8th March, 1988 in which he has stated that he had delivered  a speech on the Silver Jubilee Celebration of the Bar  Council of  Andhra Pradesh  at Hyderabad  where the audience consisted  of Judges  and lawyers. On that occasion he had made a speech on the subject of accountability of the Legislature, the  Executive and  the Judiciary.  He  further stated that  during the  speech, he  made  comments  on  the accountability  of   the  three   organs   and   theoretical implications thereof.  The Minister  has further  reiterated with utmost  emphasis at  his command  that he  intended  no disrespect to  any of  the institutions or its functionaries much less  this Hon’ble Court. He further stated that he has high regard  for this  Hon’ble Court. He further stated that the contempt petition is not maintainable in law without the consent of the Attorney General or the Solicitor General and

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it  was   liable  to   be  dismissed.  In  the  Meantime  an application has  been filed  by Shri  R.N. Trivedi who is an advocate of  25 years’  standing at  the Bar in which he has claimed the  right to be impleaded as a party. He has stated in the  petition that  the learned  Attorney General and the Solicitor General  should not  have been made parties to the contempt  petition   and   the   alleged   non-exercise   of jurisdiction by  the  Attorney  General  and  the  Solicitor General did  not constitute  contempt within  the meaning of section 2(c)  of the  Act. The remedy, if any, in respect of the alleged non-exercise of jurisdiction and power would lie somewhere else,  according to Shri Trivedi. Shri B. Datta at our  request   appeared  as   Amicus  Curiae  and  made  his submissions. We express our gratitude to him.      Before deciding  the question  whether this application was maintainable without the consent of the Attorney General or the  Solicitor General  as contended  by Dr.  Chitale  on behalf of  Shri Shiv  Shanker and  the question  whether the Attorney General and the Solicitor 563 General could  be made  parties to  the contempt application and whether  their action or inaction was justiciable at all in any  proceeding and  if so  in what  proceedings,  it  is necessary to  decide the  basic question  whether the speech made by  Shri P.  Shiv Shankar  and published throughout the length and  breadth of  the country  amounted to contempt of this Court,  or in  other words,  whether the speech has the effect of bringing this Court into disrepute.      "Justice is  not  a  cloistered  virtue.  she  must  be allowed to  suffer the  scrutiny and respectful, even though outspoken, comments  of ordinary  men." - said Lord Atkin in Ambard v.  Attorney-General for  Trinidad and Tobago, [1936] A.C. 322  at 335.  Administration of  justice and Judges are open to  public criticism  and public  scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is,  to defend and uphold the Constitution and the laws without fear  and favour.  This the  Judges must  do in  the light given to them to determine what is right. And again as has been  said in  the famous  speech of  Abraham Lincoln in 1865 "With  malice towards  none, with  charity for  all, we must strive  to do  the right,  in the  light given to us to determine that  right." Any  criticism  about  the  judicial system or  the Judges  which hampers  the administration  of justice or  which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be  prevented. The  Contempt of Court proceedings arise out of that attempt. Judgment can be criticised; the motives of  the  Judges  need  not  be  attributed,  it  brings  the administration of  justice into deep disrepute. Faith in the administration of  justice is  one of  the  pillars  through which democratic  institution functions and sustains. In the free market  place of  ideas criticisms  about the  judicial system or  Judges  should  be  welcomed,  so  long  as  such criticisms do  not impair  or hamper  the administration  of justice. This  is how  Courts  should  approach  the  powers vested in  them as  Judges to punish a person for an alleged contempt, be  it by  taking notice of the matter suo motu or at the behest of the litigant or a lawyer.      In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, [1971] I  S.C.R. 697,  this Court  had  to  deal  with  this jurisdiction in  respect of  Mr. Namboodiripad  who  at  the relevant time  was the Chief Minister of Kerala. He had held a press  conference  in  November,  1976  and  made  various critical remarks  relating to the judiciary which inter alia

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was described  by him  as "an  instrument of oppression" and the Judges as "dominated by class hatred, class prejudices", "instinctively" favouring the rich against the poor. He also stated that as part of 564 the ruling  classes the  judiciary "works  against  workers, peasants and  A other  sections of  the working classes" and "the law  and the system of judiciary essentially served the exploiting classes"  (emphasis supplied)  It was  found that these remarks were reported in the newspapers and thereafter proceedings commenced  in the  High  Court  of  Kerala.  The appellant Shri  Namboodiripad was  called upon to show cause why  he  should  not  be  committed  for  contempt.  In  his affidavit  the   appellant  stated  that  the  reports  were "substantially correct", though incomplete in some respects. The appellant  further claimed  that his observations did no more than give expression to the Marxist Philosophy and what was contained  in the  programme of  the Communist  Party of India.  By  a  majority  judgment  of  the  High  Court  the appellant was  convicted for contempt of court and fined Rs. 1000 or  simple imprisonment  for one  month. He  moved this Court by  an appeal.  He contended  that the law of contempt must be  read without  encroaching  upon  the  guarantee  of freedom of  speech and  expression under Article 19(1)(a) of the Constitution  and that the intention of the appellant in making  his  remarks  at  the  press  conference  should  be examined in the light of his political views which he was at liberty to  put before  the people. He sought to justify the remarks as  an exposition  of his  ideology which he claimed was based  on the  teachigs of  Marx and  Engels and on this ground claimed  protection of  the first  clause of  Article 19(1) of  the Constitution.  The conviction of the appellant was upheld  by this  Court. It was observed by Hidayatullah, C.J speaking  for the  Court that  the law punishes not only acts which  do not  in fact  interfere with  the courts  and administration of  justice but  also those  which have  that tendency, that is to say, are likely to produce a particular result. Judged  from the  angle of courts and administration of justice, there was no doubt that the appellant was guilty of contempt of court. The Chief Justice observed whether the appellant misunderstood  the teachings of Marx and Engels or deliberately distorted  them was  not to  mush purpose.  The likely effect of his words must be seen and they clearly had the effect  of lowering the prestige of judges and courts in the eyes  of the people. (emphasis supplied) That he did not intend any  such result may be a matter for consideration in the sentence  to be  imposed on him but could not serve as a justification. This  Court further  held that  the appellant had misguided  himself about  the true  teachings  of  Marx, Engles and  Lenin. According  to the  Chief Justice  he  had misunderstood the  attack by  them on  State and the laws as involving an  attack on  the Judiciary. No doubt the courts, while upholding the laws and enforcing them, do give support to the  State but  they do  not do  so  out  of  any  impure motives.  To  charge  the  Judiciary  as  an  instrument  of oppression, the  Judges as  guided and  dominated  by  class hatred, class 565 interests and  class prejudices, instinctively favouring the rich against  the poor  is to draw a very distorted and poor picture of  the Judiciary. It A was clear that the appellant bore an  attack upon judges which was calculated to raise in the minds  of the  people a general dissatisfaction with and distrust of  all judicial  decisions. According to the Chief Justice it  weakened the  authority of  law and  law  courts

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(emphasis supplied).  It was  further held  that  while  the spirit underlying  Article 19(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to be read with Articles 129 and  215 which  specially confer  on this  Court and the High Courts  the power to punish for contempt of themselves. Although Article  19(1)(a) guaranteed  complete  freedom  of speech and  expression, it also made an exception in respect of contempt of court. While the right is essential to a free society, the Constitution had itself imposed restrictions in relation to  contempt of court and it could not therefore be said that  the right  abolished the  law of contempt or that attack upon  judges and courts would be condoned. We are not concerned here  whether the  appellant in that case properly understood the communist manifesto or the views of the Marx, Engles and Lenin. While respectfully accepting the ratio and the observations  of the  learned Chief Justice made in that decision we must recognise that times and clime have changed in the last two decades. There have been tremendous erosions of many values. In this connection it is interesting to note that little  over sixty  years  ago,  on  1st  March,  1928, Justice Holmes  wrote to Prof. Harold Laski " . . .You amaze me by  saying, if  I understand  you, that  criticism of  an opinion or  judgment after  it has been rendered, may make a man liable  for contempt. I thought that notion was left for some of  our middle  western states.  I must  try to get the book and  the decision  .. "  (Holmes-Laski Letters  Vol.  I 1916-1925 Page 1032).      In the instant case we have examined the entire speech. In the  speech Shri  P. Shiv  Shankar has examined the class composition of  the Supreme  Court. His  view was  that  the class composition  of  any  instrument  indicates  its  pre- disposition, its  prejudices. This  is  inevitable.  Justice Holmes in his dissenting opinion in Joseph Lochner v. People of the  State of  New York, 49 Lawyers’ Edition 195-198 U.S. 1904  had  observed  "General  propositions  do  not  decide concrete cases.  The decision  will depend  on a judgment or intuition more  subtle than  any articulate  major premise." That intuition  more subtle  than major premise is the pride and the  prejudice of  a human instrument of a Judge through which objectively  the Judge  seeks  to  administer  justice according  to   law.  So,   therefore,   in   a   study   of accountability if class 566 composition  of   the  people  manning  the  institution  is analysed we  forewarn ourselves  of certain  inclination  it cannot be  said that an expression or view or propagation of that view  hampers the  dignity of the Courts or impairs the administration of justice.      The question  of contempt of court by newspaper article criticising  the   Judges  of   the  Court   came   up   for consideration in the case of Re: Shri S. Mulgaokar, [1978] 3 S.C.R. 162.  In order  to appreciate the controversy in this case it has to be stated that the issue dated 13th December, 1977, of  the Indian  Express published a news item that the High Courts  had reacted  very strongly to the suggestion of introducing a code of judicial ethics and propriety and that "so adverse  has been  the criticism  that the Supreme Court Judges, some  of whom  had prepared  the  draft  code,  have disowned it".  In its  issue  dated  December  21,  1977  an article entitled "behaving like a Judge" was published which inter alia  stated that  the  Supreme  Court  of  India  was "packed" by  Mrs. Indira  Gandhi "with pliant and submissive judges except  for a  few". It  was further  stated that the suggestion that  a code  of ethics  should be  formulated by

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Judges  themselves   was  "so   utterly  inimical   to   the independence   of    the   judiciary,   violative   of   the Constitutional safeguards  in that  respect and offensive to the self-respect  of the Judges as to make one wonder how it was conceived  in the first place". A notice had been issued to the  Editor-in-Chief of  the Newspaper  to showcause  why proceedings  for   contempt  under   Article  129   of   the Constitution should  not be initiated against him in respect of the above two news items      It was  observed by  Chief Justice Beg in that decision that national  interest required  that all criticisms of the judiciary must  be strictly  rational and  sober and proceed from the  highest motives  without  being  coloured  by  any partisan spirit or tactics. This should be apart of national ethics. The  comments about  Judges  of  the  Supreme  Court suggesting that  they lack  moral courage  to the  extent of having "disowned"  what they  had done or in other words, to the extent  of uttering  what was  untrue, at least verge on contempt. None  could say  that such  suggestions would  not make Judges  of this Court look ridiculous or even unworthy, in the  estimation of  the public,  of the  very high office they hold  if they  could so  easily "disown"  what they had done after having really done it. It was reiterated that the judiciary can  not be  immune from criticism. But, when that criticism was  based on  obvious distortion  or  gross  mis- statement and made in a manner which seems designed to lower respect for  the judiciary  and destroy public confidence in it, it could not be ignored. A decision on the 567 question whether  the discretion to take action for Contempt of Court  should be exercised must depend on the totality of facts and  circumstances of  the  case.  The  Chief  Justice agreed with  the other  two learned  Judges in that decision that in  those facts  the  proceedings  should  be  dropped. Krishna Iyer,  J. in  his judgment  observed that  the Court should act  with seriousness  and severity  where justice is jeopardised by  a  gross  and/or  unfounded  attack  on  the Judges, where  the attack  was  calculated  to  obstruct  or destroy the  judicial process.  The Court must harmonise the constitutional values  of free criticism, and the need for a fearless curial  process and  its presiding functionary, the judge. To  criticise a  judge fairly  albeit fiercely, is no crime but  a necessary  right. Where  freedom of  expression subserves public  interest  in  reasonable  measure,  public justice cannot  gag it  or manacle  it. The Court must avoid confusion between  personal protection  of a  libelled judge and prevention  of obstruction  of public  justice  and  the community’s confidence  in that great process. The former is not contempt  but latter  is,  although  overlapping  spaces abound. The  fourth functional  canon  is  that  the  Fourth Estate should  be given  free play within responsible limits even when  the focus of its critical attention is the court, including the  highest court.  The fifth normative guideline for the  Judges to  observe is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar  denunciation by  dignified bearing,  and the sixth consideration  is that  if  the  Court  considers  the attack  on   the  judge  or  judges  scurrilous,  offensive, intimidatory or  malicious  beyond  condonable  limits,  the strong arm  of the  law  must  strike  a  blow  on  him  who challenges the  supremacy of  the rule of law by fouling its sources and stream.      It is  well to  remember the  observations  of  Justice Brennan of U.S. Supreme Court (though made in the context of law of  libel) in  New York  Times Company v. L.B. Sullivan,

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376 U.S.  254 that  it is  a prized privilege to speak one’s mind, although  not always  with perfect  good taste, on all public institutions  and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.      Lord Denning in Regina v. Commissioner of Police of the Metropolis,  Ex   parte  Blackburn,  [1968]  2  W.L.R.  1204 observed as follows.           "Let me  say at  once that  we will never use this           jurisdiction as a means to uphold our own dignity.           That must  rest on  surer foundations. Nor will we           use it  to suppress those who speak against us. We           do not fear criticism, nor do we resent 568           it. For  there is  something far more important at           stake. It  is  no  less  than  freedom  of  speech           itself.           It is the right of every man, in Parliament or out           of it, in the Press or over the broadcast, to make           fair comment, even outspoken comment on matters of           public  interest.   Those  who  comment  can  deal           faithfully with  all that  is done  in a  court of           justice. They  can say  that we  are mistaken, and           our decisions  erroneous, whether they are subject           to appeal  or not.  All we would ask is that those           who criticise  us will  remember  that,  from  the           nature of  our office,  we cannot  reply to  their           criticisms.  We  cannot  enter  into  public  con-           troversy. Still  less into  political controversy.           We must  rely on  our conduct itself to be its own           vindication.           Exposed as  we are  to  the  winds  of  criticism,           nothing which  is said  by this  person  or  that,           nothing which is written by this pen or that, will           deter us from doing what we believe is right; nor,           I  would   add,  from  saying  what  the  occasion           requires, provided  that it  is pertinent  to  the           matter in  hand. Silence  is not  an  option  when           things are ill done."      The aforesaid  observations were  made in respect of an article written  by Mr.  Quintin Hogg  in "Punch"  (as later Lord Hailsham  then was) more or less in a critical language as the Hon’ble Minister’s speech in the instant case.      Gajendragadkar, C.J.  in Special  Reference  No.  1  of 1964, [1965] 1 SCR 413 observed as follows:                "We ought  never to  forget that the power to           punish for  contempt, large  as it is, must always           be   exercised   cautiously,   wisely   and   with           circumspection. Frequent  or indiscriminate use of           this power  in anger  or irritation would not help           to sustain the dignity or status of the court, but           may sometimes  affect it  adversely.  Wise  Judges           never forget  that the  best way  to  sustain  the           dignity and  status of  their office is to deserve           respect from the public at large by the quality of           their judgments,  the fearlessness,  fairness  and           objectivity  of   their  approach,   and  by   the           restraint, dignity  and decorum which they observe           in their judicial conduct."      It has  been  well  said  that  if  judges  decay,  the contempt power 569 will not save them and so the other side of the coin is that Judges, like  Caesar’s wife,  must be  above suspicion,  per Krishna Iyer, J. in Shri Baradakanta Mishra v. The Registrar of Orissa  High Court  and another,  [1974] 1 S.C.C. 374. It

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has to  be admitted  frankly and  fairly that there has been erosion of  faith in  the dignity  of the  court and  in the majesty of  law and  that has been caused not so much by the scandalising remarks  made by  politicians or  ministers but the inability  of the  courts of  law to  deliver quick  and substantial justice  to the  needy. Many  today suffer  from remedyless evils  which courts of justice are incompetent to deal with.  Justice cries in silence for long, far too long. The procedural  wrangle is  eroding the faith in our justice system. It  is a criticism which the Judges and lawyers must make about themselves. We must turn the search light inward. At the same time we cannot be oblivious of the attempts made to decry  or  denigrate  the  judicial  process,  if  it  is seriously done.  This question  was examined  in Rama  Dayal Markarha v.  State of  Madhya Pradesh,  [1978] 3  S.C.R. 497 where it  was held  that fair  and reasonable criticism of a judgment which is a public document or which is a public act of a  Judge concerned  with administration  of justice would not constitute  contempt. In  fact such  fair and reasonable criticism must  be encouraged because after all no one, much less Judges,  can claim  infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the Judges had a pre-disposition to convict  or  deliberately  took  a  turn  in  discussion  of evidence because  he had already made up his mind to convict the accused,  or has  a wayward bend of mind, is attributing motives, lack  of dispassionate  and objective  approach and analysis and  pre-judging of  the issues  which would  bring administration of  justice into  ridicule. Criticism  of the Judges would  attract greater attention than others and such criticism sometime  interferes with  the  administration  of justice and  that must be judged by the yardstick whether it brings the  administration of  justice into  a  ridicule  or hampers administration  of justice.  After all  it cannot be denied  that   pre-disposition  or   subtle   prejudice   or unconscious prejudice  or what  in Indian language is called "Sanskar" are inarticulate major premises in decision making process. That  element in the decision making process cannot be denied, it should be taken note of.      It has  to be  borne in  mind,  as  has  been  said  by Benjamin N.  Cardozo in "The Nature of the Judicial Process" at pages  16-17 that  the Judge  as the  interpreter for the community  of  its  sense  of  law  and  order  must  supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision. Courts are to 570 "search for  light among  the social  elements of every kind that are  the A  living force  behind the  facts  they  deal with". The  power thus  put in  their hands  is  great,  and subject, like  all power, to abuse; but we are not to flinch from granting  it. In the long run "there is not guaranty of justice," said  Ehrlich,  "except  the  personality  of  the judge. Justice  Benjamin N. Cardozo further says at page 112 of the  said book  that judicial process comes then to this, and little  more logic, history, custom and utility, and the accepted standards  of right  conduct, are  the forces which singly or  in combination  shape the  progress of  the  law. Judges try  to see  things as  objectively as  they  please. Nonetheless, we  can never see them with any eyes except our own. Therefore,  the perception  of a judge is important and relevant. Judicial  process is  not only a path of discovery but a  path of creation (Cardozo "the Nature of the Judicial Process").      President Roosevelt  in his  message to the Congress of

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the United States on December 8, 1908 stated thus:           "The chief  lawmakers in  our country  may be, and           often are,  the judges, because they are the final           seat  of  authority.  Every  time  they  interpret           contract, property,  vested rights, due process of           law, liberty,  they  necessarily  enact  into  law           parts of  a system  of social  philosophy; and  as           such  interpretation  is  fundamental,  they  give           direction to  all lawmaking.  The decisions of the           courts on  economic and  social  questions  depend           upon their economic and social philosophy; and for           the peaceful  progress of  our people  during  the           twentieth century  we  shall  owe  most  to  those           judges who  hold to  a twentieth  century economic           and social  philosophy and  not to a long outgrown           philosophy,  which   was  itself  the  product  of           primitive economic conditions."      Justice Benjamin N. Cardozo says that he remembers when the statement  made aroused  a storm of criticism. (Cardozo- The  Nature  of  the  Judicial  Process-pages  171-173).  It betrayed ignorance,  he said,  of the nature of the judicial process. Justice  Benjamin N.  Cardozo  tells  us  that  the business of  the judge, was to discover objective truth. His own little  individuality, his  tiny stock  of scattered and unco-ordinated philosophies,  these, with all his weaknesses and unconscious  prejudices,  were  to  be  laid  aside  and forgotten. According  to Cardozo the truth is, however, that all these  inward questionings  are born  of  the  hope  and desire to  transcend the  limitations which  hedge our human nature. According to Cardozo, Roosevelt, who knew men, 571 had no  illusions on  this score.  He was  not  positing  an ideal. He was not fixing a goal. He was measuring the powers and the endurance of those A by whom the race was to be run. It is well to remember the words of Justice Cardozo where he says as follows:           "I have  no quarrel,  therefore, with the doctrine           that the  judges ought  to be in sympathy with the           spirit of  their times.  Alas! assent  to  such  a           generality does  not carry us far upon the road to           truth. In  every court  there are  likely to be as           many estimates  of the  ’Zeitgeist’ as  there  are           judges on  its bench.  Of the  power of  favour or           prejudice in any sordid or vulgar or evil sense, I           have found  no trace, not even the faintest, among           the judges  whom I have known. But every day there           is borne in on me a new conviction of the inescap-           able relation between the truth without us and the           truth within.  The spirit  of the  age, as  it  is           revealed to  each of  us, is  too often  only  the           spirit of  the group  in which  the  accidents  of           birth or  education or  occupation  or  fellowship           have given  us a place. No effort or revolution of           the mind  will overthrow  utterly and at all times           the empire  of these  subconscious loyalties. "our           beliefs and  opinions," says James Harvey Robinson           (32 Political  Science Quarterly  315), "like  our           standards of  conduct come  to  us  insensibly  as           products of our companionship with our fellow men,           not as  results of our personal experience and the           inferences  we  individually  make  from  our  own           observations. We  are  constantly  misled  by  our           extraordinary faculty of ’rationalizing’ -that is,           of devising plausible arguments for accepting what           is imposed  upon us by the traditions of the group

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         to which  we belong.  We are adjectly credulous by           nature, and  instinctively accept  the verdicts of           the group.  We are  suggestible  not  merely  when           under the  spell of  an excited  mob or  a fervent           revival, but  we are  ever and always listening to           the still  small voice  of the  herd, and are ever           ready to  defend and  justify its instructions and           warnings, and accept them as the mature results of           our own  reasoning. "  This was  written,  not  of           judges specially,  but of  men and  women  of  all           classes. The  training of  the judge,  if  coupled           with what is styled the judicial temperament, will           help in  some degree  to emancipate  him from  the           suggestive  power   of  individual   dislikes  and           prepossessions. It  will help to broaden the group           to which his subconscious loyalties are due. Never           will these loyalties be utterly extinguished 572           while human  nature is  what it  is. We may wonder           sometimes how from the play of all these forces of           individualism, there  can come  anything coherent,           anything but  chaos and  the void.  Those are  the           moments in  which we  exaggerate the  elements  of           difference. In  the end  there emerges  some thing           which has  a composite  shape and truth and order.           It has  been said that "History, like mathematics,           is obliged  to assume  that eccentricities more or           less balance each other, so that something remains           constant at  last" (Henry  Adams, "The Degradation           of the  Democratic Dogma," pages 291 and 292). The           like  is   true  of   the  work   of  courts.  The           eccentricities of  judges balance one another. One           judge looks  at problems from the point of view of           history, another  from that of philosophy, another           from that  of social  utility, one is a formalist,           another  a  latitudinarian,  one  is  timorous  of           change, another dissatisfied with the present; out           of the  attrition of diverse minds there is beaten           something which has a constancy and uniformity and           average value greater than its component elements.           The same thing is true of the work of juries. I do           not mean  to suggest  that the  product in  either           case does  not betray  the flaws  inherent in  its           origin. The  flaws are  there as  in  every  human           institution. Because  they are  not only there but           visible,  we   have  faith   that  they   will  be           corrected. There  is no assurance that the rule of           the majority  will be  the expression  of  perfect           reason  when   embodied  in   constitution  or  in           statute. We  ought not  to expect  more of it when           embodied in  the judgments of the courts. The tide           rises and falls, but the sands of error crumble.                The work  of a judge is in one sense enduring           and in another sense ephemeral. What is good in it           endures. What  is  erroneous  is  pretty  sure  to           perish. The  good remains  the foundation on which           new structures  will be  built. The  bad  will  be           rejected and  cast off  in the  laboratory of  the           years.  Little  by  little  the  old  doctrine  is           undermined. Often the encroachments are so gradual           that their  significance  is  at  first  obscured.           Finally  we  discover  that  the  contour  of  the           landscape has been changed, that the old maps must           be cast  aside, and  the ground  charted anew. The           process, with all its silent yet inevitable power,

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         has been  described by Mr. Henderson with singular           felicity: "When  an adherent of a systematic faith           is brought continuously in touch with 573           influences and  exposed  to  desires  inconsistent           with  that   faith,  a   process  of   unconscious           cerebration may  take place,  by which  a  growing           store   of   hostile   mental   inclinations   may           accumulate,   strongly   motivating   action   and           decision,  but   seldom  emerging   clearly   into           consciousness. In the meantime the formulas of the           old faith  are retained  and repeated  by force of           habit, until  one day  the realization  comes that           conduct and  sympathies  and  fundamental  desires           have  become  so  inconsistent  with  the  logical           framework that  it must  be discarded. Then begins           the task  of building  up and  rationalizing a new           faith."  (Cardozo-  The  Nature  of  the  Judicial           Process pages 174-179)      If any-one  draws attention  to this  danger and aspect and measures an institution by the class content he does not minimise its  dignity or  denigrate its authority. Looked in that perspective  though at  places little  intemperate, the statement of  the Minister  in this  case cannot  be said to amount to  interference with  the administration  of justice and as  to amount  to  contempt  of  court.  The  Minister’s statement does  not interfere  with  the  administration  of justice. Administration of justice in this country stands on surer foundation.      J.A.G. Griffith  in "The  Politics of  the  Judiciary", Part I  has two  interesting passages on the judiciary which are worth quoting:           "There is one matter which I ought to mention. All           the judges,  without exception, are members of the           Athenaeum, and  I presume  you will  wish to  be a           member.  If   so,  may  I  have  the  pleasure  of           proposing you? There is a meeting of the Committee           early next week."           "The most  politically influential  of the judges,           however, has  been the  Master of  the Rolls, Lord           Denning .  .  .  With  his  own  modest  roots  he           dismisses the  attacks on  a classbased judiciary:           The youngsters  believe that we come from a narrow           background-it’s all nonsense-they get it from that           man Griffith."      Griffith in his book "The Politics of the Judiciary" at page 234  has tried  to incite  the  concept  of  the  class interest of  the judges.  Judges he  says are  concerned  to preserve and  protect the existing order. This does not mean that no  judges are  capable of  moving with  the times,  of adjusting to  changed circumstances.  But, according to him, their func- 574 tion in  our society  is to do so belatedly. He further says thus:           "Law and  order, the  established distribution  of           power both  public and  private, the  conventional           and  agreed   view  amongst   those  who  exercise           political  and   economic  power,  the  fears  and           prejudices of  the middle and upper classes, these           are the forces which the judges are expected to up           hold and do uphold."      No  contempt  proceedings  were  taken  in  England  in respect of  these and one would like to think rightly. Faith in the  administration of  justice is  not  shaken  by  such

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criticism.      Reference may  also be  made to  the decision  of  this Court in  Conscientious Group  v. Mohammed Yunus and others, [1987] 3  S.C.C. 89.  In that  case there was publication in the Indian  Express which carried the news that Mr. Mohammed Yunus, Chairman, Trade Fair Authority of India said that the Supreme Court  Judge  who  held  that  the  singing  of  the National Anthem was not compulsory had no right to be called either  an  Indian  or  a  Judge.  The  Conscientious  Group approached this Court for contempt alleging that the conduct of Mr.  Mohammed Yunus  in making  certain adverse  comments about the Judges who delivered the judgment of this Court in Civil Appeal  No. 860  of 1986  National Anthem case (1986 3 S.C.C. 615)  constituted criminal  contempt and it should be so dealt  with. Notice on this petition was issued. When the matter subsequently  came up  before a Bench of three Judges consisting of  Bhagwati, C.J.,  Oza and K.N. Singh, JJ., the contemnor filed  a reply  stating that  the petition was not maintainable inasmuch as the petitioner had not obtained the consent in writing of the Attorney General as required under section 15  of the  Act. It  appears that the petitioner was directed by  the Division Bench to move the Attorney General for his consent and the petition was adjourned. The Attorney General on  being moved  by the  petitioner for the grant of consent replied  to the petitioner stating that since he was himself a  party in  his capacity as Attorney General in the National Anthem case, it was not appropriate for him to deal with the  petitioner’s application.  When the  case later on came up  before the  same three Judges Bench on December 12, 1986, the  learned Judges  directed the  withdrawal  of  the petition with  liberty  to  the  petitioner  to  refile  the application after  obtaining consent of the Attorney General as soon as the National Anthem case was over. It was further observed  by   this  Court  that  everyone  is  entitled  to criticise the judgment of the court but no one should attack the Judges who delivered the judgment 575 as that  denigrates the judicial institution and in the long term impairs the democratic process.      Subsequently the petitioner in that case filed Criminal Miscellaneous  Petition   No.  5244   of  1986  praying  for recalling the aforesaid order on the ground that at the time when he  applied to the court for withdrawal of the petition he was not aware that under Rule 3(c) of the Rules framed by this Court,  the contempt  petition could be maintained with the consent  of  the  Solicitor  General,  if  the  Attorney General, for  any reason,  was not  in a  position  to  give consent to  the filing  of the  petition. He was so allowed. Thereafter the  petitioner approached the Solicitor General. But the  Solicitor General  declined to  give the consent in public interest.  He gave  certain reasons in support of his conclusion.  The   Court  in   the  aforesaid   decision  by scrutinising reasons  was of  the opinion  that the  reasons stated by  the Solicitor  General refusing  to grant consent could not  be said  to be  irrelevant and  the petition  was dismissed.  In   dismissing  this   application  this  Court observed at  page 93 of the report "No doubt, by the last of the sentence  of the said order, the Bench has also observed that ’the  petitioner will  not be  without remedy,  if  the Solicitor General  refuses his  consent  on  any  irrelevant ground’ but  this only  means that  such a  refusal  can  be called in  question before  this Court  by the petitioner by appropriate process".  In other  words, the  effect  of  the decision is  that the  reasons given by the Attorney General or the Solicitor General in giving or not giving his consent

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were justiciable.      As we  have mentioned before the speech of the Minister has to be read in its entirety. In the speech as we have set out hereinbefore  it appears  that Shri  P. Shiv Shankar was making a study of the attitude of this Court. In the portion set out  hereinbefore, it  was stated that the Supreme Court was composed of the element from the elite class. Whether it is factually correct or not is another matter. In our public life, where  the  champions  of  the  down-trodden  and  the politicians are  mostly from  the so-called  elite class, if the class composition is analysed, it may reveal interesting factors as  to  whether  elite  class  is  dominant  as  the champions of the oppressed or of social legislations and the same is the position in the judiciary. But the Minister went on to  say that  because the  Judges had  their ’unconcealed sympathy  for   the  haves’   interpreted   the   expression ’compensation’  in  the  manner  they  did.  The  expression ’unconcealed’ is unfortunate. But this is also an expression of opinion about an institutional pattern. Then the Minister went on  to say that because of this the word ’compensation’ in Article 31 was interpreted contrary to the spirit and the intendment of the 576 Constitution. The  Constitution therefore  had to be amended by  the  1st,  14th  and  17th  Amendments  to  remove  this ’oligarchic’ approach of the Supreme Court with little or no help. The  inter-action of  the decisions  of this Court and the  Constitutional  amendments  have  been  viewed  by  the Minister in  his speech,  but that  is nothing  new. This by itself does not affect the administration of justice. On the other hand,  such a  study  perhaps  is  important  for  the understanding  of   the  evolution   of  the  constitutional development. The next portion to which reference may be made where the  speaker has  referred to  Holmes Alexander in his column entitled  ’9 Men  of Terror  Squad’ making  a frontal attack on the functions of the U.S. Supreme Court. There was a comparison  after making  the quotation as we have set out hereinbefore: "one  should ask  the question how true Holmes Alexander was  in the Indian context. " This is also a poser on the  performance of  the Supreme  Court. According to the speaker twenty  years of  valuable time  was  lost  in  this confrontation presented  by the judiciary in introducing and implementing basic  agrarian reforms  for removal of poverty what is  the ultimate result. The nation did not exhibit the political will  to  implement  the  land  reform  laws.  The removal of  the Maharajas  and Rajas  and privy  purses were criticised because  of the  view taken  by this  Court which according to  the speaker was contrary to the whole national upsurge. This is a study in the historical perspective. Then he made  a  reference  to  the  Keshavananda  Bharati’s  and Golaknath’s cases  and observed that a representative of the elitist  culture   of  this   country,  ably   supported  by industrialists and beneficiaries of independence, got higher compensation by  the intervention  of the  Supreme Court  in Cooper’s case.  This is  also a criticism of the judgment in R.C. Cooper’s  case. Whether  that  is  right  or  wrong  is another matter, but criticism of judgments is permissible in a free  society. There  is,  however,  one  paragraph  which appears to  us to  be rather  intemperate and that is to the following effect:           "Anti-social elements  i.e. FERA  violators, bride           burners and  a whole  horde of  reactionaries have           found their heaven in the Supreme Court".      This, of  course, if  true, is a criticism of the laws. The Supreme  Court as  it is bound to do has implemented the

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laws and  in implementing  the laws,  it is a tribute to the Supreme Court  that it has not discriminated between persons and  persons.   Criminals  are  entitled  to  be  judged  in accordance with  law. If  anti-social elements and criminals have benefited  by decisions of the Supreme Court, the fault rests with  the laws  and the  loopholes in the legislation. The Courts are not deterred by such criticisms. 577      Bearing in  mind the  trend in  the law  of contempt as noticed before,  as well as some of the decisions noticed by Krishna Iyer, J. m S. Mulgaokar’s case (supra) the speech of the Minister  read in  its proper perspective, did not bring the administration  of  justice  into  disrepute  or  impair administration of  justice. In  some portions  of the speech the language  used could  have been  avoided by the Minister having the  background of  being a  former Judge of the High Court. The  Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it  must be  held that  there was  no imminent danger of  interference with  the administration of justice, nor of  bringing a  institution into disrepute. In that view it must be held that the Minister was not guilty of contempt of this Court.      The view  we have  taken on  this aspect  of the matter would have  been sufficient to dispose of this petition. But another question  of law  of some  importance has  arisen in this matter.  Under the  Act in  case of  criminal  contempt other than a contempt referred to in section 14 which is not the facts  of this  case, namely,  a contempt in the fact of this Court or a High Court, this Court or the High Court may take action  either on its own motion or on a motion made by the Advocate  General which  in relation to this Court means the Attorney  General or  the Solicitor General or any other person with  the consent of the Attorney General in terms of section 15  of the  Act. Therefore,  cognizance for criminal contempt could  be taken  by  the  Court  by  three  methods namely, on  its own motion, or on the motion of the Attorney General or  the Solicitor  General or on motion by any other person with  the consent  of the  Attorney  General  or  the Solicitor General.  Therefore, the  only course  open  to  a citizen for  initiating proceedings  for contempt  where the Court does  not take  cognizance on  its motion or where the Attorney General  or the  Solicitor General  does  not  take action is  to move  for consent  in writing  of the Attorney General or  the Solicitor  General. The question is, does it cast a  duty upon  the Attorney  General  or  the  Solicitor General to  consider application  for grant  of such consent and whether  the granting or non-granting of such consent is justiciable by  the Court  and if so whether the question of non-granting can be brought up in a rolled application moved by a  person to  bring it to the notice of the Court to take action suo  motu and at the same time to consider whether in the same  proceeding the  action of  the Attorney General or the Solicitor  General in  granting or  not granting consent can be  challenged or  it must  be always  by an independent proceeding. The consent certainly is linked up with contempt proceedings. Indeed Mohammed Yunus’ case (supra) was 578 dismissed because  no consent  was obtained.  In the instant case the  Minister has  taken the plea that consideration of this case cannot be taken because there is no consent of the law officers. Does it or does it not "tend to interfere with due course  of judicial proceedings" in terms of clause (ii) of section 3(c) of the Act? If so is it justiciable in these proceedings? Attorney General and Solicitor General of India

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in  respect   of  this   Court  occupy  positions  of  great importance and  relevance. Attorney  General, though  unlike England is  not a  member of  the Cabinet yet is a friend of the  Court,  and  in  some  respects  acts  as  the  friend, philosopher and  guide of  the Court.  (See Art.  76 of  the Constitution).  Yet   the  Act   vests  him   with   certain discretions. All  statutory discretions are justiciable in a society governed  by the  rule of law. one must remember the remarks of  Thomas Fuller-  "Be you ever so high, the law is above you"  and this  Court is the finder and interpreter of that law  in cases  of this  nature with  the assistance  of Attorney  General  and  in  his  absence  or  inability  the Solicitor General.      It is  well to remember what Burke said in the House of Commons in  1772 in  connection with  the motion  for select committee for  enquiry into  the affairs  of the  East India Company and  Clive. He said that when discretionary power is lodged in  the hands  of any man or class of men, experience proves that  it will  always be  abused. Where no laws exist men must  be arbitrary and very necessary acts of government will often  be, in such cases, represented by the interested and malevolent  as instances  of wanton oppression (Clive of India -  Nirad C.  Chaudhry, page  381). Times  have changed here, the  discretion is vested on a very high dignitary and a friend of the Court, yet it is subject to scrutiny.      On this  aspect it  is necessary to refer to the letter dated 3rd  December, 1987,  which Shri P.N. Duda, petitioner herein wrote  to the  Attorney General  wherein he requested for grant  of consent  for initiating  contempt  proceedings against Shri  P. Shiv Shankar and others namely, the Editor, Hindustan Times  and the  Printer and  Publisher,  Hindustan Times. After  setting out  the contempt as alleged by him in that letter, he stated, inter alia, as follows:           "I am  more aware  than  any  that  you  may  feel           embarrassed in  giving consent  for prosecution of           Shri Shiv  Shankar, who happens to be the Minister           who effectively  hires and fires law officers, and           for all  purposes during  whose pleasure they hold           their offices. Since emergency period we have seen           the modalities  of this  hiring and  firing  which           causes 579           apprehensions  in   my  mind  about  the  possible           outcome of  this request.  I, however,  thought it           fit to  make this  request, reminding  you of your           duties as the ex-officio leader of the bar to give           your consent for prosecution of the persons named.           The other  two are  being named because the one is           the Editor and the other the Printer and Publisher           of the  paper, viz.  the  Hindustan  Times,  which           published the report.           I will  expect you  to take  a  decision  in  this           matter within  a  week  of  the  receipt  of  this           request. If  I do not hear from you in either way,           I will presume that you have declined the consent.           In that  event I will consider myself free to move           the court  for taking  action on  its  own  motion           under section  15(1)(a) of  the Contempt of Courts           Act 1971  seeking my  participation as  an  amicus           curiae."      A copy  of the  said letter  was sent  to the Solicitor General of  India with request to treat it as a request made to him  independently also under section 15(1)(b) of the Act read with  Rule 3(3)  of the Supreme Court Contempt of Court Rules, 1975.  He wrote  another letter on 8th December, 1987

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in which  he reminded  the Attorney General of certain stand taken by  him in  respect of  Shri Charanjit  Lal Sahu.  The relevant portion of the said letter reads as follows:           "I may  invite your  attention to  the  remarkable           stand you took when a PIL matter initiated by Shri           Charanjit Lal  Sahu came  before a  bench  of  the           Supreme Court,  and  how  concerned  you  felt  in           seeing Shri  Sahu being prosecuted for having made           some statements  about the  Court, which were more           foolish  than  intemperate,  for  maintaining  the           dignity of  the court.  No-one would have taken Mr           Shau’s statement  seriously, nor  was it addressed           to a  large audience. Shri Shiv Shankar’s diatribe           against the  Supreme Court is more intemperate, is           addressed to  a very  nation-wide large  audience,           and the maker of the statement is a man of status,           whom no-one  will ignore.  I think  you will  keep           this aspect in mind in considering my request."      A copy  of the  said letter  was also  forwarded to the Solicitor General  of India.  In reply  the Attorney General wrote a  letter on  14th December,  1987 in which he stated, inter alia, as follows: 580           "You suggest  that we  cannot discharge our duties           impartially. In  other words,  you have  sought to           undermine the  credibility of  any decision we may           take. These  two deeply  hurtful  allegations  are           calculated to  ensure that  in which  ever way  we           exercise our function, justice will not be seen to           be  done.   Therefore,  we   feel  that   in   the           circumstances no  useful purpose will be served in           exercising our function at all.            This  letter has  the approval  of the  Solicitor           General to whom a copy of your letter was sent. "      Shri Duda  wrote another  letter on 19th December, 1987 both to  the Attorney  General and the Solicitor General, in which he stated, inter alia, as follows:           "Needless  to   point  out  that  your  letter  is           suggestive of  your refusal to discharge your duty           to accede  or not  to  accede  to  my  request  of           granting sanction  and legally  I am entitled to a           mandamus against  you from  an  appropriate  court           seeking  direction   against  you  to  decide  the           matter, one  way or  the other.  I have thought it           fit to  make an  alternative  request  to  you  to           relieve me  of  the  unpleasant  duty  of  seeking           relief in any other way."      After setting  out  the  facts  in  the  petition,  the petitioner inter  alia, stated  that he  had approached  the learned Attorney  General and  the Solicitor General to look into these  aspects of  the matter  and accord sanction. The conduct of  the said  respondent No. 2 and respondent No. 3, according to the petitioner, amounted to refusal to exercise jurisdiction vested in them by law and, therefore, they were impleaded  as   parties  in   the  present  proceedings  (as necessary and/or  proper parties) in order that they may get an opportunity  to justifying  the stand  they have taken in the  matter   flowing  from   their  refusal   to   exercise jurisdiction. Upon  this notice  was issued by this Court to all the respondents in the manner indicated above.      Shri Gopal Subramaniam has appeared before us and filed a statement  signed by the learned Attorney General and also made his oral submissions. Shri Trivedi, intervener has also made his submissions. The main plank of their submissions is that the  actions of  the Attorney General and the Solicitor

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General to  act were  motivated because of the allegation of bias in the aforesaid letter. Reliance was 581 placed  in  the  case  of  Vassiliades  v.  Vassiliades  and another, A.I.R.  1945 P.C.  38 where  the Judicial Committee reiterated that it was highly desirable that all proceedings should be dealt with by persons who are above any suspicion, however, unreasonable,  of being  biased. It  was reiterated that in  any case,  there was  no question of the petitioner being without  remedy because  the  Court  can  always  take action suo  motu. The  question, therefore, is whether there was a  duty cast  upon the Attorney General or the Solicitor General to  consider the  question of  granting  consent  in terms of  clause (b)  of section  15(1) of  the  Act  in  an appropriate case and if in fact such consent was not granted that question  could be considered by the Court. It is not a question of  making the  Attorney General  or the  Solicitor General a  party to  a contempt proceeding in the sense that they are  liable for  contempt, but  if the  hearing of  the contempt proceedings  can be  better proceeded  by obtaining the consent of the Attorney General or the Solicitor General and the  question of justifiability of giving the consent is interlinked on the analogy of Order II Rule I of the Code of Civil Procedure  which has application to a civil proceeding and not  to a  criminal proceeding,  it is permissible to go into this  question. Indeed,  in the  case of  Conscientious Group (supra)  precisely this was done, where an application for contempt was filed and which was revived pursuant to the previous order and the Court while doing so had reserved the right to  consider on  the previous occasion the question if the Solicitor  General refuses to give consent improperly or on irrelevant ground the Court could consider that question. In the  case of  Conscientious Group, (supra) the Court went into the  reasons given  by the  Solicitor General declining consent. This  Court in  that case  held on examination that such consent was properly refused. This is a complete answer to the  contention that  in a  contempt petition the grounds for either  giving consent  or not giving consent or for not considering the  application for consent are justiciable and that question can not be gone into in that proceeding though it must  be emphasised in that proceeding that the Solicitor General was  not made  a party  to  the  proceeding.  In  my opinion it  will be  more appropriate  for an officer of the Court whose  action is being investigated to be made a party in the  proceedings otherwise  it would  be violative of the rule of  audi alteram  partem.  On  behalf  of  the  learned Solicitor General,  Shri A.K.  Ganguly  has  made  elaborate submissions. It  was submitted  by  Shri  Ganguly  that  the procedure followed  by the petitioner simultaneously seeking the consent  of the  Attorney General was not proper and the Solicitor General  had been  invoked and that was not proper and legal.  It is not possible to accept this submission. It was contended  that  there  was  no  doctrine  of  necessity applicable in this case because even if the 582 Attorney General  or the  Solicitor General  does  not  give consent a  party is  not without a remedy and can bring this to the  notice  of  the  Court.  Discretion  vested  in  law officers of  this Court to be used for a public purpose in a society governed  by rule  of law is justiciable. Indeed, it was gone into in the case of Conscientious Group (supra) and it will be more appropriate that it should be gone into upon notice to  the law  officer concerned.  It is  a case  where appropriate ground  for refusal to act can be looked into by the Court.  It cannot  be said as was argued by Shri Ganguly

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that the refusal to grant consent decides no right and it is not reviewable.  Refusal to  give consent closes one channel of initiation  of contempt.  As mentioned hereinbefore there are three  different channels,  namely, (1) the Court taking cognizance on  its own  motion; (2)  on the  motion  by  the Attorney General  or the  Solicitor General;  and (3) by any other person  with the  consent in  writing of  the Attorney General or  the Solicitor  General. In  this case apparently the Attorney  General and  the Solicitor  General  have  not moved on  their  own.  The  petitioner  could  not  move  in accordance with  law without the consent of Attorney General and the  Solicitor General though he has a right to move and the  third   is  the  court  taking  notice  suo  motu.  But irrespective of  that there was right granted to the citizen of the  country to  move a  motion with the consent. In this case whether  consent  was  to  be  given  or  not  was  not considered for  the reasons  stated by the Attorney General. Those reasons  are linked  up with  the Court  taking up the matter on  its own  motion. these  are inter-linked. In that view of  the matter  these are justiciable and indeed it may be instructive  to consider  why this  practice grew  up  of having the  consent .  This was explained in S. K. Sarkar v. V. C. Misra, [1981] 2 S.C.R. 331 where Sarkaria, J. speaking for the  Court observed  at page  339 of the report that the whole object of prescribing these procedural modes of taking cognizance under  section 15 of the Act was to safeguard the valuable time  of the  High Court or the Supreme Court being wasted  by   frivolous  complaints  of  contempt  of  court. Frequent use  of this  suo motu  power  on  the  information furnished by  an  incompetent  petition,  may  render  these procedural safeguards provided in subsection (2), otiose. In such cases,  the High  Court may be well advised to avail of the advice  and assistance  of the  Advocate-General  before initiating  proceedings.   In  this   connection  the  Court referred to  the observations  of Sanyal Committee appointed to examine this question where it was observed: "In the case of criminal  contempt, not  being contempt  committed in the face of  the court, we are of the opinion that would lighten the burden of the court, without in any way interfering with the sanctity  of the administration of justice, if action is taken on  a motion  by some  other agency.  Such a course of action would give 583 considerable assurance  to the  individual charged  and  the public at  large. Indeed, some High Courts have already made rules for  the association  of the  Advocate-General in some categories of  cases at  least .  . .  " It was the practice that except  where the  Court feels  inclined to take action suo motu  parties were entitled to move only by the consent. If no  justiciable reason  was given  in an appropriate case and such  consent was  refused can  it be said that it would not be proper for the Court to investigate the same?      The  question   of  contempt   of  court  came  up  for consideration in the case of C. K. Daphtary and others v. O. P. Gupta  and others, [1971]  Suppl. S.C.R. 76. In that case a petition  under Article  129 of the Constitution was filed by Shri  C.K. Daphtary and three other advocates bringing to the notice  of this  Court alleged contempt committed by the respondents. There this Court held that under Article 129 of the Constitution  this Court  had the  power to  punish  for contempt  of  itself  and  under  Article  143(2)  it  could investigate any  such contempt.  This Court  reiterated that the Constitution made this Court the guardian of fundamental rights. This  Court further held that under the existing law of contempt of court any publication which was calculated to

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interfere  with   the  due   course  of  justice  or  proper administration of  law would  amount to contempt of court. A scurrilous attack  on a  judge, in  respect of a judgment or past conduct  has in  our country  the inevitable  effect of undermining the  confidence of  the public in the Judiciary; and  if  confidence  in  Judiciary  goes  administration  of justice definitely  suffers. In  that case  a  pamphlet  was alleged to  have contained  statements amounting to contempt of the  Court. As  the Attorney  General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose  to bring  the matter to the notice of the Court. It  was alleged that the said President and the other members of  the Bar  have no  locus standi.  This Court held that the  Court could issue a notice suo motu. The President of  the   Supreme  Court  Bar  and  other  petitioners  were perfectly entitled  to bring  to the notice of the Court any contempt of the Court. The first respondent referred to Lord Shawcross   Committee’s    recommendation   in   U.K.   that "proceedings should  be instituted  only  if  the  Attorney- General in  his discretion  considers them  necessary." This was only a recommendation made in the light of circumstances prevailing in  England. But  that is  not the  law in India, this Court  reiterated. It has to be borne that decision was rendered on  19th March,  1971 and  the present Act in India was passed  on 24th  December, 1971. Therefore that decision cannot  be   of  any  assistance.  We  have  noticed  Sanyal Committee’s recommendations  in India as to why the Attorney General should be associated with it, and 584      thereafter in  U.K.  there  was  report  of  Phillimore Committee in  1974. In  India  the  reason  for  having  the consent of  the Attorney  General was examined and explained by Sanyal Committee Report as noticed before.      Our attention  was drawn  by Shri Ganguly to a decision of the   Allahabad  High Court  in G.N.  Verma v.  Hargovind Dayal  and  others,  A.I.R.  1975  Allahabad  52  where  the Division Bench  reiterated that  Rules which provide for the manner in  which proceedings for Contempt of Court should be taken continue  to apply  even after  the enactment  of  the Contempt of  Courts Act, 1971. Therefore cognizance could be taken suo  motu and information contained in the application by a  private individual  could  be  utilised.  As  we  have mentioned hereinbefore indubitably cognizance could be taken suo motu  by the  Court but  members of the public have also the right  to move  the Court. That right of bringing to the notice of  the Court  is dependent  upon consent being given either by  the Attorney General or the Solicitor General and if that  consent is  withheld without  reasons or L) without consideration of  that right  granted to  any  other  person under section 15 of the Act that could be investigated on an application made to the Court.      It was  contended that neither the Attorney General nor the Solicitor  General were  proper  or  necessary  parties. Reliance was  placed on  B. K.  Kar v. The Chief Justice and his Companion Judges of the Orissa High Court and others, [1962] 1  S.C.R. 319.  In that case under an order passed by the appellant,  a Magistrate,  one was  put in possession of some property on October 14, 1955. In revision the order was set aside  by the  High Court  on August  27, 1957  and  the opposite party  S  applied  on  November  20,  1957  to  the appellant for  redelivery of possession. applied to the High Court for a review of its previous order and on November 25, 1957, the  application was  admitted and an interim stay was granted of  the proceedings before the appellant. A telegram addressed to  a pleader,  not the  counsel for  G, was filed

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along with  the application. The appellant refused to act on this application  and telegram  and on November 27, 1957, he allowed the  application of  S for  restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon  the writ for redelivery of possession was not issued. The  High Court convicted the appellant for contempt of court  for passing  the order for restitution on November 27, when  the High  Court had  stayed the  proceedings.  The appellant appealed  to this  Court and  impleaded the  Chief Justice and  Judges of  the High  Court as respondents. This Court held that the appellant was 585 not guilty  of contempt  of court. It further held that in a contempt matter  the Chief  Justice and  Judges of  the High Court should  not be  A made parties and the title of such a proceeding should  be "In  re .....  the alleged contemnor". Mudholkar, J. speaking for the Court observed at page 321 of the report  that the  decision of Judges given in a contempt matter is  like any other decision of those Judges, that is, in matters  which come  up  before  them  by  way  of  suit, petition, appeal  or reference.  Since  that  was  the  real position, this  Court observed that there was no warrant for the practice  which was  in vogue  in India there, and which had been  in vogue  for over  a century, of making the Chief Justice and Judges parties to an appeal against the decision of a  High Court in a contempt matter. The said observations were sought  to be  relied in  aid of  the proposition  that where the  decision of the Attorney General or the Solicitor General was  involved, they  were not  necessary  or  proper parties. Reliance  on this  decision  for  this  purpose  is entirely misconceived.  Where an appeal comes to this Court, which is  a judicial  decision, the  Judges who rendered the decision are  not necessary parties. There is no lis between a suitor  and a  judge in  a judicial  adjudication. But the position  is   entirely  different  where  there  is  suitor claiming the  exercise of  a statutory  right in  his favour which he  alleges is  hampered by an official act of a named official in  the Act.  In respect  of justiciability of that act of the official there is a lis and if that lis is inter- linked with  the proceeding  for contempt,  there is warrant for making  him party  in that proceeding though the prayers and the notice must be issued differently.      As mentioned hereinbefore in the case of S.C. Sarkar v. V.C. Misra  (supra) this Court had observed that it may well be advices  to avail  of the  advised and  assistance of the Advocate General before initiating proceedings. Shri Ganguly appearing for the Solicitor General sought to urge before us that advice  and assistance  could not  be  compelled  by  a suitor. This  cannot be agreed to. The statute gives a right to a  suitor to  move the  Court in one of the contingencies for contempt  or bring  to  the  notice  of  the  Court  the contempt with  the advice  and assistance  of  the  Attorney General or  the Solicitor  General. If  such  right  is  not considered  on   relevant  materials  then  that  action  is justiciable in an appropriate proceeding for contempt.      Reference may  be made  to the case of Attorney General v. Times  Newspapers Ltd.,  [ 1973]  3 All  E.R. 54. In that case a  drug company  began to-  make and sell in the United Kingdom a  sedative which  contained the  drug  thalidomide. Lord Morris  observed in  that case  that  the  purpose  and existence of courts of law is to preserve freedom 586 within  the  law  for  all  well  disposed  members  of  the community and  anything which  hampers the administration of law should  be prevented  but it  does not mean that if some

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conduct ought  to be  stigmatised as being contempt of court it could  receive absolution  and be  regarded as legitimate because it  had been  inspired by  a desire to bring about a relief of  some  distress  which  was  a  matter  of  public sympathy and concern. Dealing with this aspect Lord Cross of Chelsea has  observed that  ’contempt  of  court’  means  an interference with  the administration  of justice  and it is unfortunate that  the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. ’Justice’ he said  is   an  ambiguous   word.  When   we  speak   of  the administration of  justice we mean the administration of the law, but  often the  answer which  the  law  gives  to  some problem is  regarded by  many people  as unjust.  Lord Cross further observed  that there  must be  no prejudging  of the issues in  a case  is one  thing. To say that no one must in any  circumstances   exert  any   pressure  on  a  party  to litigation  to   induce  him  to  act  in  relation  to  the litigation in  a way  in which he would otherwise not choose to act  is another and a very different thing. Lord Cross at page 87 of the report observed as follows:           "In conclusion  I would  say that  I disagree with           the  views   expressed  by  Lord  Denning  MR  and           Phillimore LJ  (1973 1  All E.R.  815) as  to  the           ’role’ of the Attorney-General in cases of alleged           contempt of court. If he takes them up he does not           do so  as a  Minister of  the Crown  ’putting  the           authority of  the Crown  behind the complaint’-but           as ’amicus  curiae’ bringing  to the notice of the           court some  matter of  which he considers that the           court shall  be informed  in the  interests of the           administration of  justice. It  is, I  think, most           desirable that  in civil  as well  as in  criminal           cases anyone  who thinks  that a criminal contempt           of court  has been  or is  about to  be  committed           should, if  possible, place  the facts  before the           Attorney-General for  him to  consider whether  or           not those  facts appear  to disclose a contempt of           court  of   sufficient  gravity   to  warrant  his           bringing the matter to the notice of the court. Of           course, in  some cases  it may  be essential if an           application is to be made at all for it to be made           promptly and  there may  be no time for the person           affected by  the ’contempt’  to put  the  .  facts           before the  attorney before  moving himself. Again           the fact that the attorney declines to take up the           case will not prevent the complainant from seeking           to persuade the court 587           that notwithstanding  the refusal  of the attorney           to act  the matter  complained  of  does  in  fact           constitute a  contempt of  which the  court should           take notice.  Yet, again,  of course, there may be           cases where  a serious  contempt appears  to  have           been committed  but for one reason or another none           of the parties affected by it wishes any action to           be taken  in respect  of it.  In such cases if the           facts come  to the  knowledge of the attorney from           some other  source he will naturally himself bring           the matter to the attention of the court.      Lord Cross  has noticed  in  his  speech  that  if  the Attorney General  declines to  take up the case, it will not prevent the  complainant from  seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the  matter  complained  of  does,  in  fact,  constitute  a

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contempt of  which the  Court should  take notice.  But that does not  derogate the  rights of the individual to move the Court. See  the observations of Lord Reid. In Indian Express Newspapers (Bombay)  Pvt. Ltd.  and Ors.  etc. v.  Union  of India and  others, [ 1985] 1 S.C.C. 641, the observations of the aforesaid decision in Thalidomide case were relied upon.      Reliance was  also placed  on the  observations of  the House of  Lords in  Gouriot  and  others  v.  H.M.  Attorney General,  [1978]   Appeal  Cases  435.  There  it  held  the initiation  of  litigation  and  the  determination  of  the question whether  it is  a  proper  case  for  the  Attorney General to  proceed in,  is a  matter  entirely  beyond  the jurisdiction of  that or  any other  Court. It is a question which the  law  has  made,  to  reside  exclusively  in  the Attorney General.  The House  of  Lords  was  reversing  the decision of  the Court  of Appeal  in the celebrated case of Gouriet v. Union of Post office Workers, [19781 Appeal Cases 435 where  the House  of Lords could find no legal basis for the lower courts’ attempt to outflank the Attorney General’s refusal to  grant his  fiat to  Mr. Gouriet. In the Court of Appeal, all  the three  Judges,  Denning  M.R.,  Lawton  and Ormrod LJ,  upheld the plaintiff’s claim for declaration and interim injunction  even in  the  absence  of  fiat  by  the Attorney General.  The statutory  provisions  were  entirely different. It  may be  in  the  context  that  the  Attorney General  had   to  move  in  his  discretion  which  is  not justiciable. But  in our  opinion it is justiciable. English decisions are  of persuasive  value and  we would  prefer to rest out  decision on  the observations  of Lord  Denning in Gouriet v.  Union of  Post office  Workers &  Ors., [1977] 1 Q.B. 729  at 752  to 763  though made in connection with the Attorney General’s discretion in 588 giving consent  in instituting  a suit  for injunction  by a member of  the public.  In U.K.  the  position  of  Attorney General as  a member  of the Cabinet is different. There the contempt  of  Court  is  regulated  by  different  statutory provisions which  were examined  by  a  Committee  known  as Phillimore Committee  Report. See  also the  observations of Sikri J.  as the  Chief Justice then was, in C.K. Daphtary & Ors. (supra)  at page 109 of the report.      Our attention  was drawn  to the decision of the Andhra Pradesh High  Court in  Rajagopal Rao  v.  Murtza  Mutjahdi, [1974] 1  Andhra Law  Times 170. We are unable to accept the ratio stated  in view of the terms of section 15 of the Act. Our  attention   was  also   drawn  to   the  case   of   N. Venkataramanappa v.  D.K. Naikar,  A.I.R. 1978 Karnataka 57. It is also not possible to accept the position that under no circumstances the  exercise of  discretion by  the  Attorney General or Solicitor General cannot be enquired into.      Having considered  the peculiar facts and circumstances of this  case and  the allegation  of bias  which were  made against the  Attorney General  and the Solicitor General, it appears that  the Attorney General and the Solicitor General acted properly  in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court.      In the  aforesaid view  of the  matter,  this  petition fails and it is accordingly dismissed and the application of Shri Trivedi is accordingly disposed of.      RANGANATHAN, J.  I agree  with  the  conclusion  of  my learned  brother   that  no  case  has  been  made  but  for initiating contempt  proceedings against  respondent No.  1. The principles  applicable to,  and  the  case  law  on  the subject have  been discussed  by him  at length and I do not

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have much  to  add.  The  impugned  comments  were  made  by respondent No.  1 in the course of his key note address at a seminar on ’Accountability of the Legislature, Executive and Judiciary under  the Constitution  of India’  organised by a Bar Council.  Though, in  view of  the position  held by the speaker, the  contents of  the speech,  and. in  particular, some ’savoury’ passages therefrom have been highlighted in a section of the Press, the speech was made before an audience comprising essentially  of lawyers,  jurists and judges. The speech represented  primarily an  exercise by the speaker to evaluate  the   roles  of  the  executive,  legislature  and judiciary in  this country since its independence and to put forward the theory that, like the executive and 589 the legislature,  the judiciary  must also be accountable to the people.  The petitioner  contends that there are certain passages in  the speech  which  seem  to  attribute  a  sub- conscious partiality,  bias or  predeliction  in  judges  in disposing of  various matters  before them  and  that  these comments fall within the scope of the decision of this Court in the  case of  E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, [1970] 2 S.C.C. 325. Barrie & Lowe in their "Law of Contempt," (Second  Edition, PP. 233, 240-1) and Arlidge and Eady in  their "Law of Contempt" (Second Edition, PP. 162-3, 168), on  a review  of the  judicial decisions on the topic, seem to  suggest that even allegation of partiality and bias on the  part of judges may not amount to contempt so long as it is  free from  the taint of ’scurrilous abuse’ and can be considered to  be ’fair  comment’. The  observations made by the Lord  Justice Phillimore  Committee on Contempt of Court in 1974 on this type of contempt (Paras 160 & 161) also make interesting  reading.   I  do  not,  however,  think  it  is necessary to  pursue this  aspect  of  the  matter.  In  the present case,  it is  true, as  pointed out  by  my  learned brother, there are passages in the speech which, torn out of context, may  be liable to be misunderstood. But reading the speech as a whole and bearing in mind the select audience to which it  was addressed,  I agree with my learned brother no contempt has  been committed. I think that we should accept, at its  face value,  the affidavit  of respondent No. 1 that the speech  was only  a theoretical dissertation and that he intended no disrespect to this Court or its functioning.      2. The  second aspect  of the  case on  which arguments have been  addressed before us relate to the procedure to be followed  in  such  matters.  As  this  aspect  raises  some important issues,  I would  like to  state my  views thereon separately.      3. The  criminal miscellaneous  petition filed  by  the petitioner purports  to be  only "information"  u/s 15(1)(a) and (b) of the Contempt of Courts Act, 1971 (’the Act’). The petitioner seeks  to inform  this Court that he came to know from a report in ’Hindustan Times’ that respondent No. 1, in the course  of a  speech delivered  by him  at Hyderabad  on November 28, 1987, had made certain statements which, in the petitioner’s opinion,  rendered him  liable to  be proceeded against for  contempt of  court. Appending what is stated to be a  full text  of the  said speech  as  published  in  the ’Newstime", the  petitioner prays  that this Court should be pleased to  "initiate contempt of court proceedings suo motu under S.  15(1) of the Contempt of Court Act, 1971 read with rule 3(a)  of the  Supreme Court  (Contempt of Court) Rules, 1975". Though the prayer is vague as to the person 590 against whom  the  proceedings  are  to  be  initiated,  the allegations in  the petition  leave  no  doubt  that  it  is

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respondent No.  l, and  only he,  who, even according to the petitioner, is  to be  charged with  contempt. Nevertheless, the petitioner  has added  three  more  respondents  to  the Criminal Miscellaneous Petition, namely the Attorney General of India (by name), the Solicitor General of India (by name) and Sri  13 Ramoji Rao, Editor of "Newstime". In my opinion, this petition  raises certain question of general importance which need  to  be  discussed  so  as  to  evolve  a  proper procedure, at  least for future guidance in these matters. I proceed to discuss these aspects.      4. Article  129 of  the Constitution  declares that the Supreme Court  shall be  a court of record and that it shall have all  the powers  of such a court including the power to punish for  contempt of  itself. However,  the powers of the Supreme Court  and High  Court  in  this  regard  have  been recently classified  in the  Contempt of  Courts Act,  1971. This Act  defines "contempt of court" and classifies it into two categories,  "civil contempt"  and "criminal  contempt". These definitions  need not be set out here, particularly as the petitioner  has filed a ’criminal miscellaneous petition and  it  is  quite  clear  that  what  he  seeks  to  charge respondent No.  1 with  is "criminal  contempt". Section  14 deals with  contempt in the face of the court and we are not concerned with  it here.  Section 15  specifies how criminal contempt is  to be taken cognizance of. It will be useful to set out here the relevant portions of this section:           " 15.  Cognizance of  criminal contempt  in  other           cases-           (1) In the case of a criminal contempt, other than           a con tempt referred to in Section 14, the Supreme           Court or the High Court may take action on its own           motion or on a motion made by-           (a) the Advocate-General, or           (b) any  other person, with the consent in writing           of the Advocate-General, or           (c) in  relation to  the High  Court for the Union           Territory  of  Delhi,  such  law  officer  as  the           Central Government  may, by  notification  in  the           official Gazette,  specify in  this behalf, or any           other person,  with the consent in writing of such           law officer.           xxx                    xxx                  xxx 591           (3) Every  motion  or  reference  made  under  the           section shall  specify the  contempt of  which the           person charged is alleged to be guilty.           Explanation-In  this   section,   the   expression           "Advocate-general" means           (a)  In   relation  to   the  Supreme  Court,  the           Attorney-General or the Solicitor-General;           xxx                     xxx                   xxx"      5. This  Court has, with the approval of the President, framed, in  exercise of  its powers  under section 23 of the Act read  with article  145 of  the Constitution,  rules  to regulate proceedings  for contempt of the Supreme Court. The rules relevant for our present purpose are the following:           3. In  case of  contempt other  than the  contempt           referred to in rule 2, the Court may take action:           (a) suo motu, or           (b) on  a petition  made by  Attorney General,  or           Solicitor General or           (c) on  a petition  made by any person, and in the           case of  a criminal  contempt, with the consent in           writing of  the Attorney  General or the Solicitor           General.

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         4.(a) Every  petition under rule 3(b) or (c) shall           contain:           (i) the name, description and place of residence           of the petitioner or petitioners and of the           persons charged;           (ii) nature  of the  contempt  alleged,  and  such           material facts,  including the  date or  dates  of           commission of  the  alleged  contempt  as  may  be           necessary for  the  proper  determination  of  the           case;           (iii) if  a petition  has previously  been made by           him on  the same  facts, the petitioner shall give           the details  of the  petition previously  made and           shall also indicate the result thereof; 592           (b)  The   petition  shall   be  supported  by  an           affidavit.           (c) where the petitioner relies upon a document or           documents in  his possession  or power,  he  shall           file such  document or  documents of  true  copies           thereof with the petition.           (d) No court-fee shall be payable on the petition,           and on any documents filed in the proceedings.           5. Every petition under rule 3(b) and (c) shall be           posted before  the Court  for preliminary  hearing           and for  orders as  to issue  of notice. Upon such           hearing, the  Court, if  satisfied that  no  prima           facie case  has been made out for issue of notice,           may dismiss the petition, and, if not so satisfied           direct that  notice of  the petition  be issued to           the contemner.           6.(1) Notice  to the  person charged  shall be  in           Form  I.   The  persons   charged  shall,   unless           otherwise charged shall, unless otherwise ordered,           appear in  person before  the Court as directed on           the date fixed for hearing of the proceedings, and           shall continue  to remain  present during  hearing           till the  proceedings is  finally disposed  of  by           order  of   the  Court.  F.  (2)  When  action  is           instituted on  petition, a  copy of  the  petition           along with  the annexures  and affidavits shall be           served upon the person charged.           10. The  Court may direct the Attorney- General or           Solicitor General to appear and assist the Court.      6. A  conjoint perusal  of the  Act and  rules makes it clear that,  so far  as this  Court is concerned, action for contempt may  be taken  by the Court on its own motion or on the motion of the Attorney General (or Solicitor General) or of any other person with his consent in writing. there is no difficulty where the court or the Attorney-General choose to move in  the matter. But when this is not done and a private person desires  that such  action should  be taken,  one  of three courses  is open  to him. He may place the information in his  possession before the Court and request the Court to take action:  (vide C.K.  Daphtary  v.  O.P.  Gupta,  [1971] Suppl. S.C.R.  76 and Sarkar v. Misra, [1981] 2 S.C.R. 331); he may place the information before the Attorney 593 General and  request him to take action; or he may place the information before  the Attorney  General and request him to permit him  to move  the Court.  In the  present  case,  the petitioner alleges  that he  has failed  in the  latter  two courses-this will be considered a little later-and has moved this "petition" praying that this Court should take suo motu action. The  "petition" at  this stage,  constitutes nothing

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more than  a mode  of laying the relevant information before the Court  for such  action as the Court may deem fit and no proceedings  can   commence  until   and  unless  the  Court considers the  information before it and decides to initiate proceedings. Rules 3 and 4 of the Supreme Court (Contempt of Court)  Rules  also  envisage  a  petition  only  where  the Attorney General  or any  other  person,  with  his  written consent, moves  the Court.  Rule 5  is  clear  that  only  a petition moved  under rule  3(b) and  (c) is  to  be  posted before the  Court for  preliminary hearing.  The form  of  a criminal miscellaneous petition styling the informant as the petitioner and  certain  other  persons  as  respondents  is inappropriate for  merely lodging  the relevant  information before the  Court under  rule 3(a).  It would  seem that the proper title  of such a proceeding should be " In re .. (the alleged contemner)" (see: Kar v. Chief Justice, [1962] 1 SCR 320 though  that decision related to an appeal from an order of conviction  for contempt  by the High Court). The form in which this  request has  to be sought and considered in such cases has  also been touched upon by the Delhi High Court in Anil Kumar  Gupta v.  K. Subba  Rao, ILR  1974 Delhi 1. This case, at  the outset,  pointed out  that the information had been erroneously  numbered by  the office  of the  Court  as Criminal original  No. 51  of 1978  and concluded  with  the following observations:           "The office  is to take note that in future if any           information is  lodged  even  in  the  form  of  a           petition inviting this court to take action u/s 15           of the  Contempt of  Courts Act  or Article 215 of           the Constitution, where the information is not one           of the  persons named  in section  15 of  the said           Act, it  should not  be styled  as a  petition and           should not  be placed  before the  judicial  side.           Such a  petition should be placed before the Chief           Justice for  orders  in  chambers  and  the  Chief           Justice  may   decide  either  by  himself  or  in           consultation with  the other  judges of  the court           whether to take any cognizance of the information.           The office to direct to strike off the information           as "Criminal  original No. 51 of 1973" and to file           it"      I think  that the  direction given  by the  Delhi  High Court sets out 594 the proper  procedure in  such cases  and  may  be  adopted, atleast in  future, as a practice direction or as a rule, by this Court and other High Courts. However, a petition having been  filed   and  similar  petitions  having  perhaps  been entertained earlier in several courts, I do not suggest that this petition should be dismissed on this ground.      7. In  this case,  apart from filing his information in the form  of a  miscellaneous petition,  the petitioner  has added as  respondents to  the petition  not only the alleged contemner but three more persons. He says that he approached the Attorney  General of  India and the Solicitor General of India for  their written  consent to  enable him  to file  a petition under  Section 15(1)  read with  rule 3(c) but that they have  refused to  exercise the  jurisdiction vested  in them by  law and  that, therefore, "they have been impleaded as parties  in the  present proceedings (as necessary and/or proper parties) in order that they may get an opportunity to justify the stand they have taken in the matter flowing from their  refusal   to  exercise   jurisdiction."  So   far  as respondent No.  4, is  concerned, the  only reason given for impleading him  is that  the full  text  of  the  speech  of

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respondent No.  1 has come out in the newspaper published by him and  placed before  the court  and  that  he  was  being impleaded only  to prove  the authenticity of the speech, in the event of possible disclaimer of the respondent No. 1. In other words,  respondent No.  4 is  only a  possible witness through whom  he proposes  to prove  the authenticity of the speech which  contains the  words of alleged contempt. In my opinion this cannot be done. Assuming that a petition is the proper form of approach to the court under rule 3(a), I have indicated earlier  the proper  title to  such a petition. It will have  no respondents  and it  will be  for the court to issue notice  to persons  against whom  a case  for contempt needs examination.  Viewed as  a petition  under rule  3(c), rule 4  envisages only  that the petition should contain the name,  description   and   place   of   residence   of   the petitioner(s)  and   the  persons   charged.  It   does  not contemplate any other person being made a party to it. Under rule 6 the notice to the person charged is to be in the form appended to  the rules and the form of notice not only makes it clear that it is to be addressed only to a person charged with contempt  of court but also contains certain directions appropriate only to such a person. This is naturally so, for it is  obvious that  the only persons who can be respondents in such  a petition  are the  persons who  are charged  with criminal  contempt.  The  petition,  as  filed  here,  is  a petition for  initiating proceedings  for contempt  of court only against  respondent No.  1. Even  if the petitioner has any other  cause  of  action  against  other  persons,  such persons are neither necessary nor even proper parties to the petition. 595 This is  especially so  because such cause of action is of a purely civil  nature. At best the petitioner can say that he is entitled  to a  writ of  mandamus directing  the Attorney General and  Solicitor General  to discharge their statutory obligation in  case  they  fail  to  do  so  or  a  writ  of certiorari to  quash their  decision in  case they  withhold unreasonably  their  consent  to  the  petitioner  filing  a petition. But  this is  a remedy  to be sought independently against these persons by a separate writ petition. He cannot seek  to   get  relief  against  the  Attorney  General  and Solicitor General  by  a  petition  mixing-up  his  criminal charge against  respondent No.  1 and  his civil  grievances against the  Attorney General  and Solicitor  General. It is true that  on the  terms of  Section 15(1)  and rule 3(c), a petition for  contempt will not be maintainable by a private person without  the written  consent of the Attorney General or the  Solicitor General.  But he  cannot seek  to get over this objection  to the maintainability of a petition without such  consent  merely  by  the  device  of  adding  them  as respondents to  the petition,  even if  he had added, in the petition, a  prayer for  some relief  against them.  But, in this case,  even such a prayer is not there and no relief is sought against  the Attorney  General or  Solicitor General. This petition,  therefore, if  treated as  a petition  under rule 3(c),  is not  maintainable for  want of consent by the Attorney General  and the  Solicitor General  and has  to be dismissed as  such. That  apart, as  I have  already pointed out, the  inclusion of  respondents 2 to 4 as respondents to the  petition  is  totally  unjustified  and,  even  if  the petition is  to be  taken on  record as  a  mere  laying  of information under rule 3(a), the names of respondents 2 to 4 must be struck off from the array of parties. I would direct accordingly.      8.  This   case  itself   illustrates   the   type   of

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difficulties which  can arise  by filing  such a  rolled  up petition. Having  regard to  the nature  of the  allegations against respondent  No. 1 and the form in which the petition had been  presented, we were of opinion that the question as to "what  action, if  any, need  be taken"  by this Court on such a petition called for consideration and we directed the issue of  such a  notice by  our order  dated 10.2.1988. The terms of  the order make it clear that we wanted to hear the parties  mentioned   in  the  petition  and  the  Additional Solicitor General  on the  above question. Some aspects that arise  for   consideration  are:  whether  the  petition  is properly framed;  what is  the relief,  if any,  that can be given to  the petitioner  against the alleged refusal of the Attorney General  and Solicitor  General to  give consent to the petitioner  to file a contempt petition; and whether, in case they  considered themselves disabled from acting on the application, the  Additional Solicitor General can be called upon to exercise the said 596 function. We  needed assistance  on  these  issues.  If  the Attorney A  General/Solicitor  General  had  not  been  made parties, we  would have  called upon them to assist us under rule 10.  Since, however, they had been added as parties, we directed notices  to issue  to them  "as to  what action, if any, need  be taken on the petition." Unfortunately, we find that a  notice was  issued not  only to the first respondent named in  the petition  (the alleged  contemner) but also to the other  "respondents" named  in the petition, in the form prescribed under  the rules  containing recitals  which  are appropriate only  in the  case  of  a  person  charged  with contempt of  court, though  a mention  was specifically made that the  contempt charge was only against respondent No. 1. The issue  of notices  in the  prescribed form  to the other respondents was  unjustified. This  type of difficulty arose only because  the petition  joined, as  respondents, persons who are  totally  unnecessary  for  deciding  the  issue  of contempt. There  was no  question of  any ’contempt’  notice being issued  to the  Attorney General/Solicitor  General as there was  not even  a suggestion  of  any  such  allegation against them  and no  other  relief  had  also  been  sought against them.  I think  that, in  the circumstances, notices should not  have been  issued to  them in  the form in which they were issued.      9. I may next consider the question whether even if the petitioner was particular about his right to file a petition under rule  3(C), he  can  have  any  recourse  against  the Attorney General  and the  Solicitor General  in  case  they refuse their  consent or, as alleged in this case, refuse to deal with the petitioner’s application. One possible view is that the discretion to be exercised by the Attorney General/ Solicitor General  is a  quasi-judicial discretion  and that its exercise is subject to judicial review by this court. In this connection,  reference was made to the judgment of this Court in  Conscientious Group  v. Mohammed  Yunus and  ors., J.T. 1987(2) 377. In that case, the petitioner had withdrawn a contempt  petition filed by it as the Attorney General had expressed his  inability to  exercise his  jurisdiction  for reasons stated  by  him.  Subsequently,  the  petitioner  on learning that  it could  get the  consent of  the  Solicitor General, sought to have the earlier order recalled. Bhagwati C. J. Observed:           " ..  we would make it clear that it would be open           to  the   petitioner  to  approach  the  Solicitor           General and to revive the petition after obtaining           the consent  of the  Solicitor General  under Rule

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         3(c).  Since  this  remedy  is  available  to  the           petitioner for reviving the petition for contempt,           we do  not propose  to recall the order permitting           withdrawal of 597           the petition.  The petition  can be revived by the           petitioner after  obtaining  the  consent  of  the           Solicitor General.  We  may  point  out  that  the           petitioner will  not be  without  remedy,  if  the           Solicitor  General  refuses  his  consent  on  any           irrelevant ground. "      The matter  was then  referred to the learned Solicitor General who declined consent stating that it would not be in public  interest   to  give  his  consent.  The  court  then considered  the  reasons  given  by  the  learned  Solicitor General and came to the conclusion that the ground stated by him for  declining the  consent could  not  be  said  to  be irrelevant in  the  eye  of  the  law  or  characterised  as arbitrary,  illegal   or  unreasonable.   The  petition  for contempt was, threfore, dismissed. From these circumstances, it is sought to be suggested that the action of the Attorney General/Solicitor General  is subject  to judicial review by this Court.      10. In  my opinion this is not the necessary conclusion that follows  from the  observations  extracted  above.  Our attention has  been drawn  by Sri Ganguly, appearing for the learned Solicitor  General, to the decision in Rajagopal Rao v. Murtza  Mutjahdi, [1974]  1 Andhra  Law Times, 170 and N. Venkataramarlappa v.  D.K. Naikar, A.I.R. 1978 Kar. 57, that the grant  or refusal  of consent  is  not  justiciable.  My learned brother  has not  accepted the  correctness of these decisions on  the ground that the statute confers a duty and discretion on  these law  officers  and  that  their  action cannot be  beyond judicial  review as no person can be above law. I  am, however, inclined to think there is something to be said  in favour  of the view taken by the two High Courts for two reasons.      11. In  the  first  place  the  role  of  the  Attorney General/Solicitor General  is more akin to that of an amicus curiae to  assist the  court  in  an  administrative  matter rather  than   a  quasi-judicial   role  determining  a  lis involving rights  of a  member of  the public  vis-a-vis  an alleged contemner.  As pointed  out by  the Supreme Court in S.C. Sarkar  v. V.C.  Misra, [1981]  2 S.C.R. 331, there are difficulties in  the Court  making frequent  use of  the suo motu power  for punishing  persons guilty  of contempt.  The Attorney General  offers his aid and assistance in two ways. On the one hand, he moves the Court for action when he comes across cases where he thinks there is necessity to vindicate the dignity  and reputation  of the  Court. On the other, he helps in  screening complaints  from the public to safeguard the valuable time of the Court The observations of Lord Reid and Lord Cross in the 598 Thalidomide case: A.G. v. Times Newspapers, [1972] A.C. 277, of the House of Lords, in a different context, in Gouriet v. Union of  Post office  Workers, [1978]  A.C. 435 and of Lord Denning and  Lawton LJ,  in the  same case  in the  Court of Appeal (1977-1  Q.B. 729)  bring  but  this  aspect  of  the Attorney General’s functions.      12. Secondly,  if we  analyse the types of action which the  Attorney  General/Solicitor  General  may  take  on  an application made to him, the position will be this. Firstly, he may  grant permission  in which  case no further question will arise.  I do  not think  it will  be open  to any other

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person to  come to the court with a prayer that the Attorney General/Solicitor General  ought not  to have  given his con sent. For,  it would  always be  open to  the Court, in case they find  no reason  to initiate  action,  to  dismiss  the petition.  Secondly,   it  is  possible  that  the  Attorney General/Solicitor General  may not  be able to discharge his statutory function  in a  particular case  for one reason or other. This  was what happened in the case of Mohammed Yunus cited earlier. In that case it was only the Attorney General who was  unable to  discharge his functions under Section 15 and the  petitioner could  move the  Solicitor General,  who declined consent. But there might be cases in which both the Attorney General  and the  Solicitor General  are not  in  a position to  take a decision on the application made to them by a  private party.  Thirdly, both of them may refuse their consent. In  the latter  two cases,  I am unable to see what purpose would  be served  by the  Court spending its time to find out  whether  the  Attorney  General/Solicitor  General should have  given a  decison one way or the other. For, the petitioner is  not without  remedy. It is open to him always to place  the information in his possession before the Court and request  the Court  to take  action. (see, Lord Cross in A.G.  v.  Times  Newspaper,  [1974]  A.C.  277  at  p.  321. Bhagwati, C.J.  could have  meant this when he said that, if the  consent  of  the  Solicitor  General  was  withheld  on irrelevant grounds, the petitioner was not without remedy.      13. the  petitioner has  submitted  that  the  Attorney General  and   Solicitor  General   acted  unreasonably   in declining to  act in  the present case. Though, as indicated earlier, it  will not  be a fruitful exercise to review such decision, particularly  when a  request for  suo motu action under rule 3(a) has been made, the point having been raised, I shall  consider how  valid this  complaint  is.  What  the petitioner here  did was that, instead of merely placing the information with  him before  the Attorney General/Solicitor General and  seeking their  consent to his filing a petition before the Court, the petitioner wrote a letter contain- 599 ing a  lot of  other irrelevant  matter. In  particular,  in paragraph   7,    he    suggested    that    the    Attorney General/Solicitor General  might feel  embrassed  in  giving consent for  the prosecution  as the  person  sought  to  be charged happened  to be  the Minister "who effectively hires and fires  law  officers  and  for  all  purposes  at  whose pleasure they  hold their  office." He  also  expressed  his apprehensions about  the possible outcome of his request. In other words,  the petitioner,  while purporting  to seek the consent   of   the   Attorney   General/Solicitor   General, simultaneously expressed  his lack  of confidence  in  their judgment  and   their  ability  to  discharge  their  duties objectively and  impartially. It  is not surprising that, in this situation,  the  learned  Attorney  General/  Solicitor General decided  not to  exercise their  statutory powers at all one  way or  the other. The learned Attorney General has placed before  us a  statement explaining  his stand  in the matter. He  has pointed out that two occasions had arisen in the past  when, for  compelling reasons,  he could  not deal with an  application for consent filed before him. So far as the present case is concerned, he has stated:           "The Attorney General has declined to exercise his           functions under  Section 15 of the Contempt of the           Courts Act  in view  of the allegations of lack of           impartiality and  independence. These  allegations           contain a  reflection of  bias and  foreclosure on           the part  of  the  Atorney  Genera.  The  Attorney

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         General declined  to investigate  the matter since           the allegation  of bias should normally disentitle           him from  proceeding further  with the matter. The           Attorney  General   has   followed   this   course           consistently."      From the above narration, it is clear that the Attorney General/ Solicitor  General acted  rightly and  in the  best traditions of  their office  by declining  to deal  with the petitioner’s request  and leaving  it to  the petitioner  to follow such  other course  as he  considered advisable.  The petitioner had  cast aspersions agaist both the Law officers doubting their  ability act  objectively and thus stultified by his own conduct this course indicated by the statute.      14. The  last question  that remains to be touched upon is whether, in a case where neither the Attorney General nor the Solicitor General is in a position to consider a request under Section 15(1)(c), it is open to the petitioner to seek the consent of some other law officer such as the Additional Solicitor General.  Apart from the fact that, in the present case, the  petitioner would  have  had  the  same  criticism against the  Additional Solicitor  General as he had against the 600 Attorney General/Solicitor  General, the clear answer to the question appears  to be  that it  is not open to him to seek such consent.  Section 15  is quite  clear that  the written consent of  only those  officers as  have been  specifically authorised by  the  section  would  be  taken  note  of  for entertaining a  petition under  the section.  But this  does not, in  any way, deprive the petitioner of his remedy as he can come  to Court,  as indeed  he has  done, requesting the court to take suo motu action.      15. For  purposes of  convenience,  I  may  sum  up  my conclusions. They are:      (a) This  petition,  if  treated  as  one  filed  under      Section 15(1)  read c.  with rule 3(a) is not in proper      form and,  if treated as one filed under rules 3(b) and      3(c), is  not maintainable  as it  is not  filed by the      Attorney General/Solicitor  General or  by  any  person      with his consent.      (b) In  either event  the petitioner  should  not  have      added to the petition respondents other than the person      who, according to the petitioner, is guilty of contempt      of court  and so their names should be deleted from the      array of parties.      (c) In  case  the  Attorney  General/Solicitor  General      refuse con  sent or  decline to  act, their decision is      not judicially reviewable and petitioner’s remedy is to      approach the Court for action under rule 3(a).      (d)  In   this  case,  the  Attorney  General/Solicitor      General acted  properly in  declining to  deal with the      petitioner’s application either way; and      (e) Considering  the  petition  as  nothing  more  than      information under  rule 3(a) on which this Court may or      may not take suo motu action and, after hearing counsel      for the alleged contemner, we think there is no need to      initiate  proceedings  against  respondent  No.  1  for      contempt of court.      I,  therefore,   agree  that  the  petition  should  be      dismissed. S.L.                                     Petition dismissed. 601