IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (C) NO.262 OF 2007 IN S.L.P. (C) NO.18879 OF 2007

All India Anna Dravida Munnetra Kazhagam … Petitioner

Versus

L.K. Tripathi and others … Respondents

WITH

CONTEMPT PETITION (C) NO.327 OF 2007 IN S.L.P. (C) NO.18879 OF 2007

J U D G M E N T

G.S. Singhvi, J.

1. Whether  respondent  Nos.1  to  5  have  willfully  disobeyed  order  dated

30.9.2007 passed by this Court in Special Leave Petition (Civil) No.18879 of 2007 and

thereby  made  themselves  liable  to  be  proceeded  against  under  the  Contempt  of

Courts Act, 1971 (for short ‘the 1971 Act’) read with Article 129 of the Constitution

of  India  and  whether  respondent  No.6  is  guilty  of  criminal  contempt  within  the

meaning  of  Section  2(c)  of  the  1971  Act  are  the  questions  which  arise  for

determination in this petition filed by All India Anna Dravida Munnetra Kazhagam

through its Presidium Chairman Shri E. Madhusudhanan.   

2. Background facts:

2.1 In  an  apparent  bid  to  pressurize  the  Central  Government  to  expedite

implementation  of  Sethu  Samudram  Project,  Democratic  Progressive  Alliance

comprising  Dravida  Munnetra  Kazhagam,  Indian  National  Congress,  Communist

Party  of  India  (Marxist),  Communist  Party  of  India  and  Pattali  Makkal  Katchi,

passed a resolution on 24.9.2007 to resort to total cessation of work and closure of

shops on 1.10.2007 and to conduct a general meeting of the leaders of all parties on

30.9.2007 at Chennai.  The relevant portions of the resolution are extracted below:

“… in order to make understand the fact that the support of the people  is  only  to  implement  the  Sethu  Samudram  Project expeditiously to the Central Government, it is resolved to conduct total cessation of work and closure of shops on the 1  st   of October  , and to conduct a general meeting of the leaders of all parties on the 30th day of September, at Chennai.”  

2.2 The petitioner challenged the afore-mentioned resolution in Writ Petition

No.31435 of 2007 filed before Madras High Court and prayed that the call given by

the  political  parties  for  organizing  bandh  in  the  State  of  Tamil  Nadu  either  on

1.10.2007 or any other day may be declared as violative of Articles 19 and 21 and the

Directive  Principles  of  the  State  Policy  and  fundamental  duties  embodied  and

enumerated in the Constitution of India.  Shri Subramania Swamy of Janta Party,

Shri  K.R.  Ramaswamy @  Traffic  Ramaswamy (founder  Chairman of  the  Tamil

Nadu Social Workers Association, Chennai) and Shri R. Balasubramanian also filed

Writ Petition Nos.31478, 31462 and 31631 of 2007 with similar prayers.

2.3 Along  with  the  writ  petition,  the  petitioner  filed  two  miscellaneous

petitions with the prayer that a direction be issued to Dravida Munnetra Kazhagam

represented  by  its  President  M.  Karunanidhi  (Respondent  No.4  in  the  contempt

petition) to deposit a sum of Rs.100 crore with the Chief Secretary, Government of

Tamil Nadu on or before 28.9.2007 which could be utilized to compensate the damage

caused  to  the  general  public  and  the  five  political  parties  be  restrained  from

proceeding with the call for bandh in the State in terms of resolution dated 24.9.2007.

2.4 After hearing counsel for the parties, the High Court admitted the writ

petitions and issued the following directions to the Chief Secretary, Director General

of Police, District Collectors and other officers of the State:

“(i) To  ensure  that  no  political  party,  organization, association,  group  or  individual  can,  by  organizing  ‘bandh/ hartal’ or by force or intimidate, stop or interfere with the road and rail  traffic  or free movement of  the citizens in the State of Tamil Nadu on the day of ‘Bandh’ i.e. 01.10.2007.

(ii) To  ensure  that  the  public  transport  in  the  State including  the  Civil  Aviation  run  smoothly  on  the day of the ‘Bandh’ i.e. 1.10.2007.

(iii) To  take  appropriate  action  against  the  person(s) indulging in stoppage or interference with the road and rail traffic or free movement of the citizens in the State of Tamil Nadu.

(iv) Chief  Secretary  to  the  Government  shall  issue  a Press  Note  to  the  Print  Media  and  also  the Electronic Media on 29/30.9.2007 informing about the preparation made by the Police to deal with the ‘Bandh’ and to make people secured.”   

2.5 Feeling dissatisfied with the High Court’s order, the petitioner filed S.L.P.

(C) No.18879 of 2007 in this Court.  The same was heard on 30.9.2007.  The counsel

representing  respondent  nos.1  to  3,  who  volunteered  to  appear,  also  made  their

submissions.   After  considering  the  respective  submissions,  this  Court  passed  a

detailed order, the relevant portions of which are reproduced below:

“From a bare perusal of the aforesaid decision, it would be clear that neither anybody can give a call for Bandh nor the same can be enforced. The High Court, in the present case, has recorded a, prima facie, finding that, in the present case, the call was given for Bandh and not strike/hartal.                     

Ordinarily, High Court as well as this Court refrains from passing an interim order the effect of which would be granting the main relief. But in cases where a party approaches court without loss of time,  there  are  no  laches  on  its  part,  it  is  not  possible  to  give notices  to  all  the  necessary  parties  and  hear  them  because  of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of court is concluded  by  judgment  of  this  court,   the    main  case  would become  infructuous,  different  considerations  would  arise  and appropriate interim order should be passed. In the present case, apart from the State of Tamil Nadu, out of the political parties, namely, Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and  Pattali  Makkal  Katchi,  only  Dravida  Munnetra  Kazhagam has appeared before us, whom we have heard at length.

After taking into consideration the entire matter, prima facie, we are also of the view that the call given by the aforesaid political parties is a call for Bandh and not strike/Hartal. Accordingly, we have  no  option  but  to  issue  notices  to  the  non-appearing respondents and pass interim order.

Issue notice.

Until further orders, Respondent Nos.3 to 7 are restrained from proceeding with the call for Bandh in the State of Tamil Nadu on 1st October, 2007 pursuant to resolution dated 24th September, 2007 or any other day.”

2.6 Even  before  filing  of  writ  petition  by  the  petitioner,  the  then  Chief

Secretary of the State -  Shri L.K. Tripathi (respondent no.1 herein) directed that the

concerned officers be asked to take steps necessary for maintaining essential services

and  for  providing  protection  to  important  offices  and  establishments  apart  from

markets and business places.   The instructions given by the Chief  Secretary were

circulated vide telefax No.SR.II/50641/2007 dated 27.9.2007, the relevant portions of

which are extracted below:-

“1. Essential  services  like  Telephone  and Telecommunication,  water  supply,  milk  distribution,  power supply,  fire  services,  newspapers,  hospitals,  shall  be ensured to function and protection given.   

2. Provide adequate protection to vital installations such as  power  stations/grids,  sub-stations,  important Government buildings, telecommunication and bridges,

oil installations, railway bridges, etc.  

3. Arrange open line patrol with immediate effect.

4. Arrange  for  regular  supply  of  milk  and  other

essentials.  

5. Provide  adequate  protection  to  the  High  Court  and other Courts.  

6. Action  to  be  taken  against  anti-social  elements  and persons indulging in acts of violence and vandalism.

7. A  visible  police  presence  shall  be  maintained throughout the city.

8. A  visible  bandobast  outside  railway  stations,  bus depots, main roads, main junctions, hospitals, courts, schools and colleges will be maintained.  

9. Necessary  protection  to  market  and  business  places shall be given.  

10. All police control rooms will be fully activated to follow up incident to take proper stern and timely action.  

11. Ensure that the ‘Hartal’ passes off peacefully.  

12. Collectors may requisition and spare other department vehicles if required by the District Superintendent of Police.  

Any incident of law and order and other matters of significance should be informed to Chief Secretary’s Control Room Telephone Nos.26571388  and  26570372,  followed  by  FAX-25677128.  Bi- hourly report commencing from 0600 hours on 01.10.2007 about the ‘Hartal’ should be given to Chief Secretary’s Control Room even if there is no incident.   First Report should commence from 0600 hours on 01.10.2007.”

2.7 On  coming  to  know  of  this  Court’s  order  through  electronic  media,

respondent No.1 directed that telephonic instructions be given to all the Collectors to

convene meetings with the respective Superintendents of Police for ensuring that law

and order and public tranquility are maintained.  

2.8 The Court’s order was officially communicated to respondent no.1 on the

same day i.e., 30.9.2007 at about 10.30 p.m. by fax.  The latter immediately forwarded

the same to respondent no.2 for taking necessary action.  In turn, respondent No.2

directed  the  concerned  police  officers  that  steps  should  be  taken  for  facilitating

unobstructed movement of  public  transport  and maintenance  of  essential  services

like water and electricity supply, milk distribution, telephone and telecommunication

service, fire service, hospitals and protection be given to Central Government offices,

courts,  bus  stands,  railway  stations,  banks,  market  places,  shops,  industrial

establishments, etc. These directions were conveyed to Zonal Inspector Generals of

Police and Commissioners of Police by Additional Director General of Police (Law

and Order) vide fax dated 1.10.2007 which was sent between 11.28 p.m. on 30.9.2007

and 6.30 a.m. on 1.10.2007.  The contents of that fax are reproduced below:-

 Date 30.09.2007 “From  

ADGP (L&O) Chennai – 4.

To All Zonal IGPs and COPs

      All unit officers are instructed to strictly follow the following instructions,  

1. The  Depots  Managers  of  the  State  Transport Corporation  will  decide  about  running  the  buses subject to availability of crew. Sufficient Bandobust must  be  provided  to  all  Bus  Depots  under  their jurisdiction.

2. Anyone  who  obstructs  the  movement  of  Public transport should be picked up.

3. Bandobust  should  be  provided  to  all  essential services  like  Hospital,  Electricity,  Offices,  Bus stands and railway stations etc.  

4. Bandobust  must  be  provided  to  all  Central Government offices, Courts and Banks.

5. Beats and Patrol should be provided to all market

places, shops and industrial establishments.

6. All anti-social elements should be picked up.   

7. Sufficient  Bandobust  arrangements  should  be

provided  at  the  places  where  Hunger  strike  is

scheduled to be held.

           Sd/- D.S.P.C.O.S.R. For ADGP (L&O) Chennai-4

                30.9.2007

C.No.D1/17566/IGP/NZ/2007 DATED 1.10.2007

COPY COMMUNICATED TO ALL SsP. AND DIsG. IN NORTH ZONE  AND  ARE  REQUESTED  TO  TAKE  NECESSARY ACTION AND REPORT COMPLIANCE.

                                                                            Sd/-  1.10.2007

For IGP/NZ/CNI-16”

2.9 The  Secretary  to  Government,  Public  (SC)  Department  also  sent  fax

No.SR.II/5064-5/2007  dated  1.10.2007  to  all  the  District  Collectors  at  11.25  a.m.

requiring  them  to  send  hourly  reports  to  the  Chief  Secretary’s  Control  Room

regarding the law and order situation, movement, transport, functioning of essential

services, functioning of schools and colleges, opening of shops, hotels and other public

utilities, attendance in Government offices etc.  

3. On 3.10.2007, the petitioner filed this  petition under Article  129 of  the

Constitution of India  read with the 1971 Act and prayed that the respondents be

punished for violation and disobedience of the Court’s order dated 30.9.2007.  The

gravamen of the petitioner’s allegation is that in complete disregard of the restraint

order  passed  by  this  Court,  the  concerned  political  parties  including  Dravida

Munnetra Kazhagam enforced the bandh in the entire State by ensuring that buses

owned by the State Transport Corporation are kept off the road and shops and other

business  establishments  remain  closed;   that  45,000  private  buses  were  also  not

allowed  to  ply  on  that  day;  that  shops  and  other  business  establishments  were

forcibly closed by the cadres of  Dravida Munnetra Kazhagam party and that the

State machinery did not take any action to ensure functioning of public transport

system and opening of the shops etc.   It is also the petitioner’s case that even though

50,000 employees of the State Transport Corporation came forward to carry out their

duties but they were prevented from entering the bus depots by the Depot Managers,

Supervisor, etc. on the instructions of higher authorities and even the main gates of

many bus terminals were closed and locked.  To substantiate these allegations, the

petitioner has placed on record the photographs collectively marked as Annexure P-5

and the telegrams which are said to have been sent by Shri K.K. Madeswaran, C.

Sengottaiyan  and  M.A.  Paneerselvam  to  Tamil  Nadu  State  Road  Transport

Corporation,  representation made by A.J.  Selvaraj,  Anna Trade Union Secretary,

Radhapuram Taluk.  In paragraph 14 of the Contempt Petition, it has been averred

that  several  workers  of  Dravida  Munnetra  Kazhagam  party  moved  in  various

vantage areas of the State with deadly and lethal weapons to ensure that no business

or commercial  activity was  done on 1.10.2007 and whoever  opened the  shop was

forced  to  down  the  shutters.   It  has  been  further  averred  that  in  Chennai,  a

restaurant at Arterial Mount Road was attacked and looted and many other shops

and  restaurants  were  ransacked  and  eatables  were  thrown  out  and  bottles  were

broken, but the police remained mute spectators.    In support of these averments, the

petitioner  placed  on  record  copies  of  various  newspapers.   In  paragraph  23,  a

reference has been made to the speech allegedly made by respondent No.6, Shri T.R.

Balu, Union Minister for Shipping and Surface Transport, at the venue of the hunger

strike on 1.10.2007 and it has been averred that the same was calculated to scandalize

judiciary in general and order dated 30.9.2007 in particular.   The relevant portions

of the speech allegedly made by respondent no.6, which is said to have been published

in the newspapers and also telecast on the television channels are extracted below:-

“If we want to conduct a Bandh in a democratic manner to ensure speedy  implementation  of  this  Project,  the  Supreme  Court  is injuncting the same.  Are judgments being delivered correctly in the Courts?  If that is so, why are higher courts granting stay of orders of lower Courts?

If  judges  are  not  making  mistakes  why  are  there  conflicting judgments?   Today  there  are  many  complaints  against  many judges. Corruption charges are appearing everyday.  What does that mean?  If they were upright yesterday, does it mean that they are not upright now?  When was a sitting ever held on a Sunday? Unprecedented things are taking place.

We  are  expressing  our  feelings.  How  many  complaints  are received  against  judges?   There  is  provision  in  law  for impeachment of sitting judges.  The MPs’ sitting here should also think about it.  Nothing wrong about it.  Our MPs, including the ministers should know about it.  Everyone including the ministers can sign it.”

4. In paragraph 7 of the reply affidavit filed by him, respondent no.1 has

averred that after telecast of the news about the restraint order passed by the Court,

telephonic  instructions were issued to the District  Collectors  to maintain law and

order and public peace.  In para 8 of the affidavit, respondent no.1 has averred that

immediately on receipt of the Court’s order, a copy thereof was sent to respondent

no.2 with suitable instructions to take necessary action and within the available time

the police force was mobilized and bandobust was provided to  all vital installations,

State and Central  Government offices,  educational  institutions,  Tamil  Nadu State

Transport Corporation depots, bus stands, railway stations, airports, markets, places

of  worship,  hospitals,  important junctions,  business areas and other places  where

people  used  to  congregate  and  bandobust  was  also  provided  to  the  industrial

establishments for their smooth functioning and pickets were posted at all sensitive

places to avert law and order problems.  According to respondent  No.1,  effective

patrols and mobiles were organized for ensuring free flow of traffic in the State and

open line patrols were deputed for keeping watch on the railway tracks; all the courts

including  the Madras High Court were given sufficient protection; vehicle checks

were organized to prevent the movement of anti-social elements and trouble mongers

and rowdy elements were detained under preventive measures.  Respondent No.1 has

claimed that on 1.10.2007 all the Courts functioned normally and movement of trains

and other essential services were maintained without any obstruction.   As regards

transport  services,  respondent  no.1  has  averred that  less  number of  Government

transport services operated in the early morning but with the passage of time around

2749 routes were made operational.   

5. In his affidavit, respondent no.2, Shri P. Rajendran, has detailed the steps

taken for ensuring presence of police at various important places for maintaining law

and  order  and  movement  of  transport  services.   He  has  denied  that  workers  of

Dravida Munnetra Kazhagam party had forcibly closed business establishments and

shops by wielding lethal and deadly weapons for the purpose of conveying threats to

the public.   

6. In his affidavit, respondent no.3 – Shri Debendranath Sarangi has given

an  account  of  the  steps  taken  for  ensuring  normal  operation  of  State  Transport

Services.  In paragraphs 11 of the affidavit, respondent no.3 has averred that senior

officers, i.e., Branch Managers and Divisional Managers of various State Transport

Undertakings  were  instructed  to  ensure  normal  operation  of  buses  on  1.10.2007.

Respondent No.3 has then averred that the officers were on duty on 1.10.2007 and

adequate police bandobust was provided at the Depots, but most of the crew did not

turn up in the morning on 1.10.2007 and even those who came did  not enter the

Depot  premises,  did  not  sign  the  duty  chart  and  dispersed  after  holding

demonstration  in  front  of  the  Depots;  that  the  Branch  Managers  and  Divisional

Managers made efforts to operate the bus services with the help of available crew and

with the passage of time the number of services substantially increased.  Respondent

No.3 has denied that the Drivers and Conductors were prevented from carrying out

their duties or that the conductors did not issue tickets or that the main gates of bus

terminals were closed and locked. He has also denied receipt of any representation or

telegram. In para 15 of the affidavit, respondent No.3 has referred to the call given by

the trade unions to abstain from work in the wake of decision taken by the political

parties and averred that even though the latter withdrew the call  for cessation of

work, there was no corresponding response from the trade unions due to paucity of

time and also due to the fact that most of the workers had left for outside places

taking advantage of the impending strike and two days’ holidays.  Respondent No.3

has also stated that the crew members who did not attend the duty on 01.10.2007

have not been paid the wages as per the policy “no work no pay”.  Respondent No.3

has  controverted  the  petitioner’s  assertion  that  daily  collection  of  the  Transport

Corporations is over Rs.10 crores.   According to him, the average collection of the

Transport Corporations is Rs.7.5 crores per day, which is reduced to half  on any

holiday and less than half in the event of continuous holidays for 3-4 days.  According

to  respondent  No.3,  total  collection  on  1.10.2007  was  Rs.483  lakhs.   Lastly,

respondent no.3 has averred that in observance of the order of this Court necessary

instructions  were  given  to  Managing  Directors  of  all  the  State  Transport

Corporations to ply buses and send reply by Fax.

7. Respondent No.4, Shri M. Karunanidhi, has come up with the plea that

initially he was advised to adopt the counter affidavits of respondent nos.1 and 2 and

a statement to that effect was made before the Court on 4.8.2008 by the advocate

representing  the  State of  Tamil  Nadu but,  later on,  he decided to file  a  separate

counter affidavit.   In paragraph 3 of  the affidavit,  respondent  no.4 has  given the

background  in  which  decision  was  taken  by  Democratic  Progressive  Alliance

comprising major political parties in Tamil Nadu to demonstrate their concern on the

delay in implementation of Sethu Samudram Project by observing cessation of work

between 6 a.m. to 6 p.m. on 1.10.2007.  Respondent No.4 has then averred that on the

basis of reports appearing in the TV news channels and after verifying the facts from

counsel appearing on behalf of respondent no.3 in the special leave petition, he gave a

call  at about 1.30 p.m. for withdrawal  of  resolution dated 24.9.2007 and this was

conveyed  to  the  concerned  political  parties.   According  to  respondent  no.3,

instructions were given to the government officials to carry out the Court’s order and

ensure that the bandh did not take place on 1.10.2007 and the fast undertaken by

political  parties  should  not,  in  any way,  affect  the general  public  or hinder  their

routine life.   For the sake of convenience, paragraph 7 of the affidavit of respondent

no.4 is reproduced below:-

“7. The  order  passed  by  this  Hon’ble  Court  was communicated  to  the  Chief  Secretary  to  Government  of  Tamil Nadu  by  FAX at  10.30  PM by  the  Registrar  of  this  Court  on 30.09.2007. Even before the order was officially communicated, it was  flashed  in  the  TV  News  channels.    After  verifying  with counsel  at  New  Delhi  and  without  waiting  for  any  formal communication  from  this  Hon’ble  Court,  at  about  1.30  PM  I immediately  called  for  the  withdrawal  of  the  resolution  dated 24.09.2007  passed  by  the  Democratic  Progressive  Alliance  for cessation of work.  This was also conveyed to all political parties, which  were  party  to  the  said  Resolution.  However,  Democratic Progressive Alliance decided to hold a day long fast on 1st October, 2007  to  draw  attention  to  the  importance  of  the  Sethu Samuthiram Project and for early implementation of the same.   I made it clear at that time that the fast was not against the order of this Hon’ble Court.  I annex an extract from the Hindu newspaper 1st October,  2007  reporting  this  (Annexure  –R1).   I  also  gave instructions to Government officials to carry out the order of this Hon’ble Court and to ensure that the Bandh did not take place on 1st October,  2007,  and  that  the  day  long  fast  undertaken  by political parties should not in any way affect the general public or hinder their routine life.”

8. Respondent No.5 has taken the stand that at the time of passing of order

by this Court, he was in his constituency (Trichy) and on receipt of information about

the Court’s order, he instructed respondent no.3 to take steps to maintain normalcy

in transport services on 1.10.2007.  Respondent No.5 has also stated that he had been

continuously  monitoring the operation of  transport services from Trichy and also

made efforts to contact the trade unions and instructed them to direct the workers to

report  for  duty  in  view  of  withdrawal  of  call  for  cessation  of  work  given  by

Democratic Progressive Alliance.   

9. In paragraphs 4 and 5 of affidavit dated 26th August, 2008 filed by him,

respondent no.6 – Shri T.R. Baalu has resorted to the rhetoric that he has highest

respect  for  the  judiciary  and  he  is  a  strong  believer  in  the  independence  of  the

judiciary.  In paragraph 7 of the affidavit, respondent no.6 has made a mention of his

electoral achievements and averred that the contempt petition has been filed with the

sole object of tarnishing his political image in the State and position as Minister in the

Central  Government.   In  paragraph 8,  respondent  no.6 has alleged that  by filing

petition before this Court, the petitioner which is the main opposition party in the

State is trying to indirectly achieve which it could not achieve in the political arena.

Respondent  No.6  has  then  given  his  own  interpretation  of  the  term bandh  and

averred that he did not participate in any activity which can be described as a bandh.

In paragraph 11 of the affidavit,  respondent no.6 has averred that nothing in the

quoted speech constitutes participation in bandh or instigating others to do so and

whatever he said was legitimate exercise of  freedom of speech.  In paragraph 12,

respondent no.6 has claimed that the newspaper report regarding his speech is not

accurate and words have been put in his mouth which were not uttered by him.

10. Arguments  in  the  case  were  heard  on  11.11.2008  and  concluded  on

12.11.2008 qua the alleged contemnor nos.1 to 5. However, the case was adjourned to

10.12.2008  to  enable  the  petitioner  to  file  additional  affidavit  in  relation  to

respondent no.6 with liberty to the latter to file reply within two weeks.  On the next

date,  i.e.,  10.12.2008,  the  Court  considered an application  made on  behalf  of  the

petitioner for summoning the tapes of the speech allegedly made by respondent no.6

on 1.10.2007 at Chennai  and ordered issue of notice to the Resident Managers of

Times Now Channel and Jaya T.V. requiring them to produce the tapes and original

chips  of  the  speech.   Notices  were  also  issued  to  Dhanya  Rajendran  and  M.

Ramasubramanian  (reporters)  and  Manish  Dhanani,  Y.  Jayaprakash  and  S.

Ravikumar (camera persons of Times Now Channel and Jaya T.V. respectively).

11. In  response  to  the  Court’s  notice,  Shri  M.  Vasudev  Rao,  authorised

signatory of Times Global Broadcasting Company Limited, which is running Times

Now Channel, sent letter dated 16th January, 2009 stating therein that the company is

unable  to  provide  the  original  tapes  and  news  clips  of  the   speech  delivered  by

respondent  no.6  because  in  terms  of  the  Uplinking  and  Downlinking  Guidelines

issued by the Ministry of  Information & Broadcasting,  Government of  India,  the

company maintains a record of the contents uplinked and downlinked by its channel

for a period of 90 days from the date of its telecast.  After taking note of that letter,

the Court allowed further time to the parties to file affidavits.

12. In  furtherance  of  the  liberty  given  by  the  Court,  the  petitioner  filed

affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, who were

working as Reporter, Assistant Camera Person and Senior Sub-Editor respectively

with Jaya T.V. on 1.10.2007. In  his  affidavit,  Shri  M.  Ramasubramanian  has

claimed that he was deputed to cover the hunger strike organized by DMK and other

allied parties on 1.10.2007 in front of the State Guest House, Chepauk, Chennai.  He

has then averred that he along with Shri Ravikumar (camera person) and Shri Satish

(camera assistant) went  to cover the events  and that he was present at the venue

where respondent no.6 made speech and Ravikumar recorded the speech which was

in  Tamil  with  sentences/phrases  in  English.   According  to  Ramasubramanian,

speeches  of  respondent  no.6,  Shri  D.  Raja  of  C.P.I.  and  Shri  K.  Veeramani  of

Dravida Kazhagam only were recorded and the original tapes were handed over to

Shri R. Thillai.   According to Shri S. Ravikumar, he accompanied by Shri Satish

went to the venue of  the hunger strike and recorded the speeches made by three

persons and, thereafter, original tapes were handed over to Shri R. Thillai.  In his

affidavit, Shri R. Thillai has stated that Jaya T.V. shoots visuals on cameras using

DV tapes and so far the channel has not shifted to the digital format and whenever

visuals  are  brought  by  the  reporting  team, the  same are  ingested  into  the  visual

editing system called Avid and, thereafter, the tapes are reused for recording other

events. Paragraphs (d), (e) and (f) of the affidavit of Shri R. Thillai, contain the

following statements:

“d. It may be noted that the original  tapes on which the visuals are recorded upon being ingested into the avid system as aforesaid and after the necessary visuals are taken, are re-used for recording other subsequent events.   In  the process,  the left  out visuals of a previous recording are erased since new recordings are made over the same.  The tapes are re-cycled in this manner and  not  retained  in  view  of  commercial  and  operational compulsions.

e. Some of the original recordings are transferred on to separate DV tapes or DVDs for archival purposes as for example, file shots of certain important events so that they could be used for future purposes.  The news bulletins, as telecast over the channel, are stored in the DVD format in the library.

f. That the protests organized by the DMK and its allies on 1.10.2007 by way of the hunger strike at Chennai was covered by  the  reporting  team  of  Mr.  Ramasubramanian  and  Mr.  S. Ravikumar and Camera assistant Satish.  They had handed over to me the original tapes containing the events recorded including the speech made by Mr. T.R. Baalu, Union Minister for Shipping and of certain other speakers during the afternoon on 1.10.2007. On  my  instructions,  the  news  branch  technicians  ingested  the contents  of  the  original  tapes  containing  the  events  covered

including  the  speech  of  Mr.  T.R.  Baalu,  into  the  Avid  system. From this, I selected the portions in the speech of Mr. Baalu which were  most  objectionable  and  found  appropriate  to  be  telecast. Accordingly,  the portions were selected and telecast in the news bulletin carried by the channel on 1.10.2007 at 7.30 PM and on 2.10.2007 at 7.30 PM.   The portions of the speech as telecast on the  news  bulletins  clearly  show  the  speech  made  by  Mr.  T.R. Baalu  and  the  objectionable  statements  made  by  him,  the translations of which read as follows:

“A  Judge  is  a  judge  till  yesterday.  Today  there  are  allegations against him. Every day a list of corruption charges are coming out from Delhi. What does that mean? Is a person who was honest till yesterday dishonest today? The nation has not forgotten the fact that such people are also judges. When has there been [hearing] on a Sunday?  Something  unprecedented  is  happening.  Why is  there  a provision for impeachment in the Constitution? Our M.Ps are all sitting here.  We should also think about it.  There is nothing wrong about  it.   Our  MPs  must  know  about  it.   Including  Ministers. Everybody can sign it.”

The news  bulletins  as  telecast  is  submitted before  this  Hon’ble Court in the form of a DVD which is filed as Annexure A/1 to this affidavit.”

In the last paragraph of his affidavit which is again marked as (f), Shri R.

Thillai has stated as under:

“f. That  I  submit  therefore  that  the  original  tape containing  the  speech  of  Mr.  T.R.  Baalu  is  not  available. Nevertheless, the news bulletins telecast by the channel containing the objectionable portions of his speech are presented before this Hon’ble Court.”

13. To  the  above  noted  3  affidavits,  respondent  no.6  has  filed  a  reply  on

21.3.2009.  The thrust of his reply is that Jaya T.V. is controlled by AIADMK party

on whose behalf  the contempt petition has been filed and,  therefore,  it  cannot be

treated as an independent media and that failure of the management of Jaya T.V. to

produce tapes and original  chip  of  the speech allegedly made by respondent no.6

should be treated as sufficient for rejecting the affidavits.  In paragraphs 7 to 12 of

the reply, it has been averred that the petitioner has produced before the Court a

truncated, edited and doctored version of the telecast made by Jaya T.V. channel,

and the same is liable to be discarded because the full  and correct version of the

speech made by respondent no.6 has been erased and the original tape containing the

speech has not been produced.   

14. In the light of 3 affidavits filed on behalf of the petitioner and counter filed

by respondent no.6, further arguments were heard on 25.3.2009 and judgment was

reserved.

15. Shri S. Guru Krishna Kumar, learned counsel for the petitioner in S.L.P.

(C) No.18879 of 2007 representing the petitioner in Contempt Petition (C) No.262 of

2007 argued that in view of the orders passed by the Division Bench of the Madras

High Court and this Court, the call  given by Democratic Progressive Alliance for

cessation of work must be treated as call  for bandh in the State and even though

respondent no.4 is said to have made a statement on 30.9.2007 at 1.30 p.m. giving an

impression that resolution dated 24.9.2007 was withdrawn, no direction was given by

the political establishment to the concerned officers to ensure that the administration

moves  on  and respondent  Nos.1  to  3  did  not  take steps  to prevent  disruption  of

normal life in the State. He further argued that the so called withdrawal of the call

given by the political parties for cessation of work must be treated as sham because

the workers of the party headed by respondent No.4 indulged in physical violence

and ensured that bandh is observed throughout the State by forcing closure of shops

and commercial/ industrial establishments.  Learned counsel relied on the newspaper

reports to buttress his submission that the workers of Dravida Munnetra Kazhagam

party  had,  by  wielding  deadly  weapons  compelled  the  shop  keepers  to  down  the

shutters and general  public  to remain away from the streets and argued that this

should be treated as sufficient for drawing an inference that respondent no.4 had

deliberately manipulated violation of the Court’s order. Shri Guru Krishna Kumar

emphasized that the business, commercial/industrial establishments could not have

remained closed without intimidation and use of force by the outfits of the political

parties and argued that respondent no.4 should be held responsible for the acts of his

party  workers.    Learned  counsel  then  argued  that  by  sitting  on  hunger  strike,

respondent No.4 and other political parties deliberately violated the Court’s order

restraining them to organize bandh because out of fear the schools, colleges, business,

commercial  and industrial  establishments  were  closed  and  people  refrained  from

carrying out their normal activities.  Learned counsel submitted that if  respondent

no.4 genuinely wanted to abide by this Court’s order then after making a statement

in the afternoon of 30.9.2007 that there will be no cessation of work, he would have

given written instructions to respondent nos.1 to 3 to ensure that the public life is not

disturbed but instead of doing so respondent no.4 indirectly encouraged the officers

to enforce the bandh else there was no reason why majority of buses belonging to

seven State  Transport  Corporations  did  not  ply  on 1.10.2007 putting  the  general

public to great inconvenience and acute hardship.  Learned counsel referred to the

averments contained in paragraphs 10 to 12 of the contempt petition, to show that

even  as  per  the  statement  made  by  respondent  no.1  in  an  interview  given  to  a

television channel during the mid day on 1.10.2007, only 61 of the 18641 buses could

be operated on the date of bandh and argued that this should be treated as a clear

proof of abject failure of respondent nos.1 to 3 to ensure that the normal life is not

affected and the public is not inconvenienced.  Learned counsel pointed out that due

to the bandh organized by Democratic  Progressive Alliance,  which was indirectly

supported by respondent nos.1 to 3, State Transport Corporations suffered loss to the

tune  of  Rs.10  crores  and  submitted  that  all  the  respondents  should  be  made  to

compensate the State Transport Corporations.  Learned counsel submitted that in a

cabinet form of government, the political party in power is responsible for the action

and omissions of the administrative officers and, therefore, respondent no.4 should

be held guilty of committing contempt of Court.  As regards respondent no.6, Shri

Guru Krishna Kumar strongly relied on the speech made by the said respondent on

1.10.2007 and argued that he should be held guilty of committing criminal contempt

within the meaning of  Section 2(c) of  the 1971 Act and adequately punished.   In

support of his arguments, Shri Guru Krishna Kumar relied upon the judgments of

this Court in Mohd. Aslam v. Union of India [(1994) 6 SCC 442], M. v. Home Officer

[(1993) 3 All  ER 537], A. Sanjeevi Naidu v. State of Madras [(1970) 1 SCC 443],

Azhar Ali  Khan v.  Commissioner, Municipal Corporation of Delhi [(1984) 3 SCC

549], Hoshiar Singh v. Gurbachan Singh [1962 (Supp) 3 SCR 127], T.N. Godavarman

Thirumulpad v. Ashok Khot [(2006) 5 SCC 1],   Aswini Kumar Ghose v. Arabinda

Bose [1953 SCR 215] and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar

[(1970) 2 SCC 325].

16. Shri  R.  Venkataraman,  learned  counsel  appearing  on  behalf  of  the

petitioner in Contempt Petition No.262 of 2007 argued that respondent nos.1 to 5 are

guilty of civil contempt inasmuch as they willfully disobeyed the directions contained

in order dated 30.9.2007 passed in Special Leave Petition (Civil) No.18879 of 2007

and ensured that  total  bandh is  organized in the State.   Learned counsel  further

argued that respondent no.6 is guilty of criminal contempt because he scandalized the

Court’s order dated 30.9.2007 by making unwarranted remarks against the judiciary

in general and particularly against the Bench which passed the restraint order.

17. Shri Ashok Desai, learned senior counsel appearing for respondent nos.1

and 2 argued that his clients cannot be held guilty of contempt of court because even

before formal receipt of the Court’s order at 10.30 p.m. on 30.9.2007, respondent no.1

had issued detailed instructions to all the officers to ensure that general public is not

inconvenienced and normal life is not disrupted on account of the call given by the

political  parties  for  hartal.   Learned  senior  counsel  referred  to  the  instructions

contained in telefax issued as per the directions of respondent No.1 and fax sent by

Additional Director General of Police (Law & Order) to show that respondent nos.1

and 2 had taken all measures for protection of hospitals, courts, railways, airports,

banks,  schools,  telecom  installations,  transport  services,  shops  and  markets,

industrial establishments and for ensuring that essential services like supply of milk

and water and movement of trains are maintained without any obstruction and the

police force was mobilized to protect the lives and property of the people in addition

to Government and private establishments.  Shri Desai emphasized that proceedings

under the 1971 Act are quasi criminal and argued that respondent nos.1 and 2 cannot

be accused of committing contempt within the meaning of Section 2(b) of the 1971

Act because the petitioner has not produced any evidence to show that they willfully

disobeyed order dated 30.9.2007.  Learned senior counsel submitted that respondent

nos.1 and 2 cannot be held guilty of  contempt merely because leaders of political

parties sat on hunger strike on 1.10.2007 and the business community did not open

the shops in view of resolution dated 24.9.2007 passed by Democratic Progressive

Alliance for cessation of work.  He submitted that the buses of the State Transport

Corporations could not be operated in the early part of the day on 1.10.2007 because

trade unions affiliated to political parties had decided to abstain from work and large

number of employees might have left their stations in view of the call for cessation of

work  on 1.10.2007 given  by  the  Democratic  Progressive  Alliance  and the  coming

holidays on 29th and 30th September, 2007 and again on 2nd October, 2007.   

18. Shri T.R. Andhyarujina, learned senior counsel appearing for respondent

no.4, extensively referred to affidavit dated 22.8.2008 of his client to show that even

before  receipt  of  the  Court’s  order,  he  had  made a  statement  for  withdrawal  of

resolution dated 24.9.2007 and argued that in the absence of any evidence to show

that respondent no.4 had instigated anyone to disrupt the essential services or cause

inconvenience to the general public, he cannot be proceeded against under the 1971

Act.   Learned counsel submitted that telefax dated 30.9.2007 sent at the instance of

respondent no.1 also shows that the administration had taken positive steps to ensure

that essential services are not disturbed due to call given by the political parties for

cessation of work etc. on 1.10.2007 and the police bandobust was provided for all

public  and private  establishments  and  effective  steps  were  taken  for  maintaining

transport services.   

19. Dr. A.M. Singhvi, learned senior counsel appearing for respondent nos.3

and 5, argued that the concerned Minister and Secretary had made genuine efforts to

ensure  that  operation  of  buses  by  the  State  Transport  Corporations  is  not

jeopardized due to the call given by the Democratic Progressive Alliance for cessation

of work or for hunger strike on 1.10.2007 and, therefore, they cannot be held guilty of

contempt under Section 2(b) of the 1971 Act.  Dr. Singhvi placed before the Court a

compilation of fax messages and circulars issued by respondent no.3 and statements

containing the details of buses operated by seven State Transport Corporations on

1.10.2007 and collection of revenue to the tune of Rs.4.83 crores and argued that in

the absence of  any evidence or contemporaneous  record to show that  respondent

nos.3 and 5 were directly responsible for non-operation of bus services for some time,

they cannot be hauled up on the allegation of committing contempt of Court.  Shri

Singhvi emphasized that unless intentional circumspection of the Court’s order or

positive  attempt  to  frustrate  implementation  thereof  is  proved,  the  respondents

cannot be proceeded under the 1971 Act.     

20. Shri  M.N.  Rao,  senior advocate argued that  newspaper  reports of  the

alleged speech made by respondent no.6 on 1.10.2007 at Chennai cannot be relied

upon  for  holding  him guilty  of  contempt  of  court  because  the  petitioner  has  not

produced  primary  evidence  of  the  so-called  speech.   Shri  Rao  emphasized  that

newspaper reports merely represent the version given by the correspondent on the

basis of his understanding/impression of the speech made by respondent no.6 and the

same do not constitute primary evidence of what was actually stated by respondent

no.6 warranting initiation of action for criminal contempt.  Shri Rao further argued

that the tape/CD of the telecast of the speech of respondent no.6 does not represent

the true and correct version of what was said and as the original version has been

erased and tape has been reused, the allegation made against respondent no.6 is liable

to be discarded.

21. In  his  rejoinder  arguments,  Shri  S.  Guru  Krishna  Kumar highlighted

discrepancies in the fax messages sent by respondent no.3 as also the statement of

income produced by Dr. A.M. Singhvi and submitted that these documents appear to

have been fabricated after issue of notice by this Court.  He then argued that these

documents cannot be relied for exonerating respondent nos.1 to 3 of the charge of

highly contumacious conduct which resulted in violation of the Court’s order.   

22. We have considered the submissions/arguments of learned counsel for the

parties. Section 2(b) and (c) of the 1971 Act which define civil and criminal contempt

read as under:

2(b) “civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

2(c)  “criminal  contempt"  means  the  publication  (whether  by words,  spoken  or  written,  or  by  signs,  or  by  visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-  

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court ; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or  

(iii) interferes or tends to interfere with, or obstructs or tends  to  obstruct,  the  administration  of  justice  in any other manner.”   

An  analysis  of  Section  2(b)  shows  that  willful  disobedience  to  any

judgment, decree, direction, order, writ or other process of a court or willful breach

of an undertaking given to a court constitutes civil contempt.  If this definition is read

with Article 129 of the Constitution of India, it becomes clear that being a Court of

record, this Court can punish a person for civil contempt if it is found that he has

willfully disobeyed any judgment etc.  or violated undertaking given to the Court.   

23. The  term  “wilful”  (willfull)  has  not  been  defined  in  the  1971  Act.

Therefore, it will be useful to notice dictionary meaning of the said term.  As per The

New  Oxford  Illustrated  Dictionary  (1980  Edition),  the  term  “willful”  means

“asserting or disposed to assert one’s own will  against instruction, persuasion, etc.

obstinately  self-willed;  deliberate,  intentional,  showing  perversity  or  self-will”.

According to Black’s Law Dictionary, Vol.II (8th Edition) - Willful means

“voluntary and intentional, but not necessarily malicious” and willfulness means “the

fact or quality of acting purposely or by design; deliberateness; intention; willfulness

does  not  necessarily  imply  malice,  but  it  involves  more than just  knowledge;  the

voluntary,  intentional  violation or disregard of  a  known legal  duty.”  As per the

Stroud’s  Judicial  Dictionary,  Vol.5  (4th Edition),  wilful  disobedience  means  “the

willful disobedience of a SEAMAN or apprentice is ‘wilfully disobeying any lawful

command DURING the engagement’: ‘There may be many cases in which desertion

or absence  without  leave, would not  amount to willful  disobedience,  and in these

cases the seaman would only be liable to the lesser penalty.  Where, however, the

seaman deserts or is intentionally absent without leave after the time at which he has

been lawfully ordered to be on board, his desertion or absence may amount to ‘wilful

disobedience’,  and,  consequently,  that  he  would  be  liable  to  imprisonment.   The

words  ‘during  the  engagement’  seem  to  suggest  that  the  contract  between  the

employer and the employed should be taken into account, and that if, having regard

to  that  contract,  the  order  was  one  which  the  employed  was  bound to  obey,  his

disobedience  might  be  dealt  with  under  clause  (d)”   In  Shorter  Oxford  English

Dictionary, the term “willful” has been defined as, “asserting or disposed to assert

one’s own will against persuasion, instruction, or command; governed by will without

regard to reason; obstinately self-willed or perverse;   2. Willing; consenting; ready to

comply with a request, desire, or requirement – 1598.  3. proceeding from the will;

done  or  suffered  of  one’s  own free  will  or  choice;  voluntary  –  1687.  4.  Done  on

purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad

sense of a blameworthy action; freq. implying ‘perverse, obstinate’.)   

24. In Ashok Paper Kamgar Union v. Dharam Godha and others [(2003) 11

SCC 1],  this  Court  was  called upon to decide  whether the respondents,  i.e.,  Shri

Dharam Godha, Chairman, Nouveau Capital & Finance Ltd., Shri S.  Jagadeesan,

Joint  Secretary,  Ministry  of  Industry,  Department  of  Industrial  Policy  and

Promotion,  Government  of  India,  Shri  G.S.  Kang,  Secretary,  Department  of

Industries, Government of Bihar, Shri S.N. Khan, Chairman and Managing Director

and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department,

Industrial Development Bank of India were guilty of contempt.  The facts of the case

were that by an order dated 8.7.1996, this Court approved the proposal made by the

Government  of  India  for  take  over  of  M/s.  Ashok  Paper  Mills  by  M/s.  Nouveau

Capital and Finance Ltd.  and disposed of  the  writ  petition filed by Ashok Paper

Kamgar Union.  Later on, by an order dated 1.5.1997, all concerned were directed to

participate in implementation of the scheme and the Finance Secretary, Ministry of

Finance, Government of India was directed to ensure that the legal requirements are

fulfilled and the mill is rehabilitated and both Phases I and II of the Scheme are given

effect to.  Two more orders were passed by the court in the matter on 31.7.2000 and

1.9.2000.  The petitioner alleged that the respondents have failed to comply with the

directions given by the Court for implementation of the Scheme and, therefore, they

are liable for contempt of court.  This court took cognizance of the fact that M/s.

Nouveau Capital & Finance Ltd. had failed to pay the consideration of Rs.6 crores;

that  IDBI  had  disbursed  term  loan  of  Rs.15  crores  towards  Phase  I  of  revival

Scheme;  that  the  Department  of  Industrial  Policy  and  Promotion,  Ministry  of

Commerce and Industry, Government of India in cooperation with the Department

of Banking obtained sanction for additional term loan of Rs.11 crores from IDBI and

a  working  capital  of  Rs.9.25  crores  from United  Bank of  India;  that  NCFL had

invested Rs.20 crores towards promotion contribution which was much more than

amount contemplated in Phase I of the Scheme and held that respondents cannot be

held guilty of contempt. Para 17 of the judgment which contains discussion on the

subject reads as under:

“Section  2(b)  of  the  Contempt  of  Courts  Act  defines  “civil contempt”  and  it  means  wilful  disobedience  to  any  judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. “Wilful” means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil  intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution  by  the  person  charged  in  normal  circumstances.  It should  not  require  any  extraordinary  effort  nor  should  be dependent, either wholly or in part, upon any act or omission of a third  party  for  its  compliance. This  has  to  be  judged  having regard  to  the  facts  and  circumstances  of  each  case.  The  facts mentioned above show that none of the respondents to the petition

can be held to be directly responsible if  the Scheme which had been formulated by the Government of India  on 28-6-1996 and had  been  approved by  this  Court  by  the  order  dated  8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be  quite  plausible.  NCFL  has  undoubtedly  not  discharged  its liability of making payment of its entire liability of Rs.6 crores. However,  it  has  come  out  with  a  case  that  some  additional expenditure  has  been  incurred  in  running  the  unit.  It  is  not possible to get the complete financial picture only on the basis of the  affidavits  filed  in  the  present  petition.  On  the  material  on record,  therefore,  it  is  not  possible  to  hold  that  the  charge  of having committed contempt of court on account of alleged non- compliance with the orders passed by this Court on 8-7-1996, 1-5- 1997 and 31-7-2000 has been established against any one of the respondents.”

[Emphasis added]

25. In Delhi Development Authority v. Skipper Construction [(1995) 3 SCC

507], this Court highlighted distinction between the civil and criminal contempt in

the following words:-

“Civil  contempt is defined under Section 2(b) of the Act.  Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court. On the contrary,  criminal  contempts  are criminal  in  nature.  It may  include  outrages  on  the  Judges  in  open  court,  defiant disobedience to the Judges in court, libels on Judges or courts or interfering with the courts of  justice or any act which  tends to prejudice the courts of justice.”

26. In Kapildeo Prasad Sah and others v. State of Bihar and others [(1999) 7

SCC 569], the Court outlined the object of its contempt jurisdiction in the following

words:-

“For holding the respondents to have committed contempt, civil contempt at that,  it  has  to be shown that there has  been wilful disobedience  of  the  judgment  or  order  of  the  court.  Power  to punish  for  contempt  is  to  be  resorted  to  when  there  is  clear violation  of  the  court’s  order.  Since  notice  of  contempt  and

punishment  for  contempt  is  of  far-reaching  consequence,  these powers  should  be  invoked  only  when  a  clear  case  of  wilful disobedience  of  the  court’s  order  has  been  made out.  Whether disobedience is wilful in a particular case depends on the facts and circumstances  of  that  case.  Judicial  orders  are  to  be  properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person  is  drawn  to  the  court’s  orders  and  its  implications. Disobedience of the court’s order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.

No person can defy the court’s order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order.”

[Emphasis added]

27. In the light of the above, we shall now consider whether respondent nos.1

to 5 can be said to have willfully disobeyed order dated 30.9.2007.   At the cost of

repetition, we consider it necessary to point out that while issuing notice in Special

Leave Petition (Civil)  No.18879 of 2007, this Court restrained the political  parties

from proceeding with the call for bandh in the State of Tamil Nadu on 1.10.2007

pursuant  to  resolution  dated  24.9.2007  or  any  other  day.    The  language  of  the

restraint  order  is  unambiguous.  The prohibitive  injunction  contained therein  was

explicitly directed against the political parties and not against respondent nos. 1 to 3.

The Court did not direct respondent nos. 1 to 3 to act in any particular manner or

take certain specific steps to meet the challenge likely to be posed by implementation

of the call given by Democratic Progressive Alliance.  This was so because the Court

could not have presumed that the restraint order passed by it will be disregarded or

flouted by the political parties.  Therefore, respondent nos.1 to 3 cannot,  per se,  be

held guilty of disobeying or violating the Court’s order dated 30th September, 2007

and punished for committing contempt of court as defined in Section 2(b) of the 1971

Act.   

28. No doubt, the petitioners have repeatedly asserted that the buses of State

Transport Corporations and 45000 private buses remained off the road on 1.10.2007

causing serious inconvenience to the general public and loss of revenue to the tune of

Rs.10  crores,  but  their  assertion  is  partly  belied  by  the  counter  affidavits  of

respondent nos.1 to 3, wherein all the officers have detailed the reasons for operation

of less number of buses in the initial hours on 1.10.2007 and the fact that revenue

collection of the day was to the tune of Rs.4.83 crores.   In his affidavit, respondent

no.1 has categorically averred that during the course of the day 2749 routes were

made operational.  The affidavits of the official respondents also reveal that despite

instructions issued to various functionaries, normal transport services could not be

made available on account of the support extended to resolution dated 24.9.2007 by

the trade unions affiliated to the political parties and the fact that large number of

employees had gone on leave thinking that the services may not operate in the wake

of  the  call  given  by  the  political  parties  and  three  holidays.   This  has  not  been

controverted by the petitioners. The photographs produced by petitioner - All India

Anna Dravida Munnetra Kazhagam do show empty streets, but the same cannot be

made basis for recording a finding of guilt against respondent nos. 1 to 3, more so

because the petitioners have not produced any evidence to prima facie establish that

the transport services did not at all operate in the State on 1.10.2007 and that too on

account of any action or omission on the part of respondent nos. 1 to 3.  This being

the position, it is not possible to record a finding that respondent nos. 1 to 3 or for

that reason respondent no.5 deliberately disobeyed or violated the direction given by

this Court.

29. The petitioners have also not placed on record any evidence to show that

despite  restraint  order  passed  by  the  Court  on  30.9.2007,  the  political  parties

constituting Democratic Progressive Alliance resorted to strike or bandh.  They have

not even disputed that after coming to know about the Court’s order, respondent

no.4 made a statement at 1.30 p.m. withdrawing resolution dated 24.9.2007 which

contained  a  call  for  cessation  of  work  on  1.10.2007.   If,  despite  statement  of

respondent  no.4,  which  was  made  known  to  the  public,  the  shops  and  business

establishments remained closed and the private transport operators did not consider

it proper to operate their services on 1.10.2007, respondent nos.1 to 3 cannot be held

to have deliberately disobeyed the Court’s order.  

30. The  argument  of  Shri  S.  Guru  Krishna  Kumar  that  respondent  no.4

should  be held  guilty  of  contempt because  the  Government did  not  issue  written

instructions to the officers to take steps for maintaining the essential services and to

ensure that public  life  is  not disrupted on account of  the  call  for  bandh and the

workers  of  his  party  coerced  the  people  to  close  the  commercial  and  business

establishments is being mentioned only to be rejected.  The bald statement contained

in the contempt petitions that violence and coercion was resorted to by members of

the party headed by respondent no.4 has remained unsubstantiated because except

the newspaper reports no material has been produced before the Court giving the

names and other relevant particulars of the persons who are said to have indulged in

forced  closure  of  shops  and  business  establishments  on  1.10.2007  and  no  other

evidence has been produced to show that respondent no.4 had, directly or indirectly,

encouraged the members of his party to enforce the call for cessation of work which

has been prima facie treated by the Courts as call for bandh.  Therefore, respondent

no.4 cannot be accused of having engineered violation of the Court’s order.  

31. Insofar as respondent no.6 is concerned, we find that the only material

produced by the petitioner in Contempt Petition No. 262 of 2007 is in the form of

zerox copies of newspapers and tape of the edited version of speech which is said to

have  been  telecast  on  Jaya  T.V.  on  1.10.2007  and  2.10.2007.   The  petitioner  in

Contempt  Petition  No.  327  of  2007  has  also  produced  zerox  copies  of  some

newspapers.  In his first affidavit, respondent no.6 has claimed that the newspapers

have reported something by putting in his mouth which he did not speak.  In his

second  affidavit  filed  in  the  form  of  reply  to  the  affidavits  of  S/Shri  M.

Ramasubramanian, S. Ravikumar and R. Thillai, respondent no.6 has alleged that

what was telecast on Jaya T.V. was the doctored version of his speech.  This being the

position, the petitioners were duty bound to produce some primary evidence to prove

the contents of the speech made by respondent no.6 scandalizing judiciary in general

and this Court’s order dated 30th September, 2007 in particular.  The zerox copies of

the newspapers in which the contents of speech made by respondent no.6 have been

published cannot be relied upon because the petitioners have not filed affidavits of

those who covered the meeting held by the political parties in front of Chepauk Guest

House  on  1.10.2007  and  heard  the  speech  made  by  respondent  no.6.    If  such

affidavits had been filed, respondent no.6 could have been called upon to explain his

position.   Likewise,  the  original  tape  containing  telecast  of  the  speech  made  by

respondent no.6 has not been made available to the Court.

32. The law on the admissibility of tape recorded versions is well settled.  In

Ram Singh and others v. Col. Ram Singh [1985 (Supp) SCC 611] Fazal Ali, J with

whom Sabyasachi Mukharji, J. agreed, laid down the following tests for determining

the admissibility of tape recorded version:

1. The  voice  of  the  speaker  must  be  identified  by  the

maker  of  the  record  or  other  persons  recognizing  his  voice.

Where the maker is unable to identify the voice, strict proof will

be required to determine whether or not it was the voice of the

alleged speaker.

2. The accuracy of the tape-recorded statement must be

proved by the maker of the record by satisfactory evidence: direct

or circumstantial.

3. Possibility of tampering with, or erasure of any part of,

the tape-recorded statement must be totally excluded.

4. The tape-recorded statement must be relevant.

5. The recorded cassette must be sealed and must be kept

in safe or official custody.

6. The  voice  of  the  particular  speaker  must  be  clearly

audible  and  must  not  be  lost  or  distorted  by  other  sounds  or

disturbances.

33. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and

others  [(1976)  2  SCC  17],  a  three-Judge  Bench  while  considering  the  question

whether the appellant was guilty of promoting feeling of enmity between two sections

of  the  society,  examined  the  question  of  admissibility  of  tape  recorded  speech,

referred to the judgment in  R. v. Maqsud Ali [(1965) 2 All ER 464] and observed :

“We think that the High Court was quite right in holding that the tape-records of speeches were “documents”, as defined by Section 3 of the  Evidence Act, which stood on no different footing than photographs,  and  that  they  were  admissible  in  evidence  on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as  to  rule  out  possibilities  of  tampering  with  the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

34. We may now notice some judgments in which the Courts have considered

the question relating to burden of proof in contempt cases.  In Re, Bramblevale Ltd.

[(1969) 3 All ER 1062], Lord Denning observed:

“A contempt of court is an offence of a criminal character.  A man may be sent to prison for it.  It must be satisfactorily proved.  To use  the  time-honoured  phrase,  it  must  be  proved  beyond reasonable doubt.  It is not proved by showing that, when the man was  asked  about  it,  he  told  lies.   There  must  be  some further evidence to incriminate him.  Once some evidence is given, then his lies can be thrown into the scale against him.  But there must be  some  other  evidence.   ….  Where  there  are  two  equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.”

35. In Mrityunjoy  Das  and  another  v.  Sayed  Hasibur  Rahman and others

[(2001) 3 SCC 739], the Court referred to a number of judicial precedents including

the observations made by Lord Denning in Re, Bramblevale Ltd. and held:

“The common English phrase “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting  the  act  of  contempt.   As  regards  the  “standard  of proof”,  be  it  noted  that  a  proceeding  under  the  extraordinary jurisdiction  of  the  court  in  terms  of  the  provisions  of  the Contempt  of  Courts  Act  is  quasi-criminal,  and  as  such,  the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.”

36. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530], a two-

Judge Bench observed :

“As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt.  As regards the “standard of proof”, be it noted that  a  proceeding  under  the  extraordinary  jurisdiction  of  the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of  a  criminal  proceeding  and  the  breach  shall  have  to  be established beyond all reasonable doubt.”

37. In Anil Ratan Sarkar and others v. Hirak Ghosh and others [(2002) 4 SCC

21],  the  Court  referred  to  the  judgment  in  Chhotu  Ram  v.  Urvashi  Gulati  and

another (supra) and observed:

“The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country – undoubtedly a powerful  weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither  be  fair  nor  reasonable  for  the  law  courts  to  exercise jurisdiction under the statute.”

38. The  judgments  on  which  reliance  has  been  placed  by  Shri  S.  Guru

Krishna Kumar do not have any direct bearing on this case.  In A. Sanjeevi Naidu’s

case, the Court interpreted the provisions of Section 68C of the Motor Vehicles Act,

1939 and held that  when  a civil  servant  takes  a  decision,  he  does  not  do  it  as  a

delegate of his Minister but on behalf of the Government, though it is always open to

a Minister to call for any file in his office and pass order or issue directions to the

officers in his Ministry regarding the disposal of Government business generally or as

regards any specified case.  In Azhar Ali Khan’s case, the Court held that compliance

of orders or directions given by Court to Government or its instrumentalities cannot

be  avoided  merely  on   ground  of  inability  to comply with its own resolution

passed  in  the  face  of  those  clear  orders  or  directions.   In  T.N.  Godavarman

Thirumulpad’s  case  it  was  found  that  the  Minister  and  Principal  Secretary,

Department  of  Forests,  Government  of  Maharashtra  have  brazenly  and  willfully

flouted  the  Court’s  directions  and  granted  permission  to  certain  sawmills  to

recommence their operations and, therefore, they were punished under the 1971 Act.

In Mohd. Aslam’s case,  this Court considered the question whether the

State and its ministers can be proceeded against in contempt for failure to obey the

judicial pronouncements.  The facts of the case were that during the month of July,

1992,  land  measuring  2.77  acres  situated  in  Ayodhya  was  acquired  by  the  State

Government  under  Land  Acquisition  Act,  1894,  for  developing  an  amenity  for

pilgrims at Ayodhya.  Writ Petition No.1000 of 1991 was filed under Article 32 of the

Constitution  before  this  Court  questioning  the  acquisition  proceedings.   On

15.11.1991, the Court noted that the Chief Minister of the State has made statements

in  the  meeting of  the  National  Integration  Council  held  on 2.11.1991 against  the

making of  construction  at  the  site  and  accordingly,  resolution  was  passed  by the

National Integration Council and directed that no construction be made at the site.

However,  despite  the  Court’s  order,  construction  activities  were  allowed  to  be

undertaken at the site by Sadhus.  It was urged on behalf of the respondents that any

coercive/preventive action in the matter of construction of the platform would have

triggered  an  adverse  reaction  endangering  the  safety  of  disputed  ‘Ram  Janma

Bhoomi-Babri  Masjid’ structure which was situated in immediate vicinity and for

whose protection Government stood committed and, therefore, the respondent who

was holding the office of the Chief Minister, cannot be held guilty of contempt.  While

rejecting the plea, this Court relied upon the observations contained in William G.

Cooper, Members of the Board of Directors of the Little Rock v. John Aaron [358

US1 : 3 L Ed 2d 5 : 78 S Ct 1401 (1958)] and observed:-

“The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. ... Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? The  historic  phrase  ‘a  Government  of  laws  and  not  of  men’ epitomizes  the  distinguishing  character  of  our  political  society. When  John  Adams  put  that  phrase  into  the  Massachusetts Declaration  of  Rights  he  was  not  indulging  in  a  rhetorical flourish.  He  was  expressing  the  aim  of  those  who,  with  him, framed  the  Declaration  of  Independence  and  founded  the Republic. Compliance  with  decisions  of  this  Court,  as  the  constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by State and local authorities. It  presupposes  such support.  To withhold  it,  and indeed to use political power to try to paralyse the supreme law, precludes the

maintenance  of  our  federal  system  as  we  have  known  and cherished it for one hundred and seventy years. Lincoln’s appeal to ‘the better angels of our nature’ failed to avert a fratricidal war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife,  is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.” Dicey, in his Law of the Constitution, (10th Edn., pp.193-94) said: When  we  speak  of  the  ‘rule  of  law’  as  a  characteristic  of  our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and  amenable  to  the  jurisdiction  of  the  ordinary  tribunals.  In England the idea of legal equality, or of the universal subjection of all  classes  to one law administered by the ordinary courts,  has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as  any  other  citizen.  The  reports  abound  with  cases  in  which officials have been brought before the courts, and made, in their personal  capacity,  liable  to  punishment,  or  to  the  payment  of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of State, a military  officer,  and  all  subordinates  though  carrying  out  the commands of their official  superiors, are as responsible  for any act  which  the  law  does  not  authorise  as  is  any  private  and unofficial person.”

39. The  Court  then  referred  to  the  reports  of  Chief  Engineer,  District

Magistrate and Senior Superintendent of Police and proceeded to observe:-

“The next question is whether these activities were carried on by a congregation  of  Sadhus  at  the  site  and  not  by  the  State Government and despite Government’s efforts. Apart from a glib suggestion  that  any  attempt  to  prevent  the  work  would  have created a  violent  situation  endangering  the  safety  of  the  “Ram Janma Bhoomi-Babri Masjid structure” itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any  of  the  officers  as  to  what  reasonable  measures  the Government took to prevent the inflow of constructional material such as large quantities  of cement, mortar, sand,  constructional equipment, water-tankers etc. that were necessary for the work. The  report  of  the  Expert  Committee  has  indicated  that constructional machinery was indispensable having regard to the nature  and  magnitude  of  the  work  carried  out.  While  it  is understandable  that  the  prevention  of  the  gathering  of  Sadhus

might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on  the  land  unless  it  be  —  and  that  must  be  the  reasonable presumption — that the Government itself was not too anxious to prevent  it.  It  is  not  merely  positive  acts  of  violation  but  also surreptitious and indirect aids to circumvention and violation of the orders that are equally impermissible. If reasonable steps are not  taken  to  prevent  the  violation  of  the  orders  of  the  Court, Government cannot be heard to say that violation of the orders were  at  the  instance  of  others.  The  presumption  is  that  the Government  intended  not  to  take  such  preventive  steps.  In  the facts and circumstances of  the case,  we are unable  to persuade ourselves to the view that the Government was helpless and the situation that had developed was in spite of all reasonable steps taken by the Government. Indeed there is no indication that the Government  bestirred  itself  to  take  any  steps,  reasonable  or otherwise, to prevent large-scale building material getting into the site. The Chief Minister having given a solemn assurance to the National  Integration  Council  and  permitted  the  terms  of  that assurance to be incorporated as his own undertaking to this Court and allowed an order to be passed in those terms cannot absolve himself  of  the  responsibility  unless  he  placed  before  the  Court sufficient  material  which  would  justify  that  he  had  taken  all reasonable  steps  and  precautions  to  prevent  the  occurrence. Indeed, if such reasonable steps had been taken he could not be faulted merely because he did not do the best by the standards of others. In this case, we find no explanation at all apart from the fact  that  the  Sadhus  had  congregated  in  that  place  in  large number,  as  to  what  steps  the  Government  took  to  prevent  the constructional equipment from getting into site. If any reasonable effort had been made and evidence of that placed before Court, it might have been possible for the Court to assess the situation in the light of that explanation to find out whether such steps had been taken.  In the absence,  we are constrained to hold that the Government failed to take steps to prevent the grossest violation of the order of this Court. We record a finding accordingly.”

40. On the question whether the undertaking furnished by the Chief Minister

was a personal undertaking or was on behalf of the State of U.P., the Court held:

“The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both. There  is  no  immunity  for  any  authority  of  Government,  if  a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim “Crown can do no wrong” has had its influence, a distinction is made between the Crown as such and the Executive.

In a recent pronouncement of far-reaching impact, the House of Lords in M. v. Home Office observed (as per Lord Templeman):

“My Lords, Parliament makes the law, the executive carry the law into  effect  and  judiciary  enforce  the  law.  The  expression  ‘the Crown’ has two meanings; namely the monarch and the executive. In the seventeenth century Parliament established its supremacy over  the  Crown  as  monarch,  over  the  executive  and  over  the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister  who  is  supported by  a  majority  of  Parliament. Parliamentary supremacy over the Crown as executive stems from the fact  that Parliament maintains  in  office the Prime Minister who  appoints  the  ministers  in  charge  of  the  executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the  law  against  the  Crown  as  monarch  because  the  Crown  as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his  action  against  the  minister  who  is  responsible  for  the department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law, the litigant can sue the minister, in this case Mr. Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all  persons  and institutions,  including  ministers  in  their  official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of court.

* * *

My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official  capacity would,  if  upheld,  establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend Lord Woolf and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt.”

In the State of Bihar v. Rani Sonabati Kumari this Court approved the following view of Chakravartti, C.J., in Tarafatullah Mandal v. S.N. Maitra:

“I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government.  In what

form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party  concerned,  where  such  party  is  a  corporation.  I  am not aware of any similar rule obtaining in this country,  but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be  a  distress  warrant  directed  against  the  properties  of  the Government or the Corporation.”

   (emphasis supplied)

The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there  is  a  personal  element  contributing  to  contempt,  in  his personal capacity, liable in contempt.”

41. In the case before us fact situation is entirely different.   As mentioned

above, on coming to know of the restraint order passed by this Court, respondent

no.4 made a statement for withdrawal of resolution dated 24.9.2007 vide which call

was given by five political parties for cessation of work.  It is also borne out from the

affidavit of respondent no.1 that on 24.9.2007 itself the said respondent had issued

instructions to all the officers to ensure that law and order and essential services are

maintained and the general  public  is  not inconvenienced due to the call  given by

political  parties  for cessation of  work.   On 30.9.2007,  respondent  nos.1 to 3 gave

detailed  instructions  to  all  the  officers  to  ensure  that  the  public  is  not  put  to

harassment,  the  government  and private  properties  are  not  damaged,  supplies  of

essential  services  like  water,  electricity,  telecom,  railways  etc.  are  not  disrupted,

supply of milk etc. is maintained and business and other commercial establishments

are  provided  protection.   Efforts  were  also  made  to  ensure  that  operation  of

transport  services  is  not  affected.   Respondent  no.5  had  monitored  operation

undertaken by the departmental authorities for restoring normal operation by the

State Transport Corporation.  It is, thus, evident that respondent nos. 1 to 5 did not

disobey the restraint order passed by this Court and respondent nos. 1 to 3 took all

the  steps  necessary  for  preventing  any  disruption  of  public  services  and

inconvenience to the general public.  It is a different thing that in the wake of hunger

strike  by  leaders  of  political  parties,  the  business  community  did  not  consider  it

proper  to  open  shops  etc.  Therefore,  the  ratio  of  Mohd.  Aslam’s case  and  other

precedents referred to in that judgment cannot be applied to this case for framing

charges  against  respondent  nos.1  to  5  on  the  premise  that  they  have  committed

contempt within the meaning of Section 2(b) of the 1971 Act.   

42. Insofar as respondent no.6 is concerned, charge cannot be framed against

him with  reference  to  Section  2(c)  of  1971  Act  because  the  petitioners  have  not

produced any legally admissible evidence to prove the contents of the speech allegedly

made by the said respondent. The judgments in Aswini Kumar Ghose v. Arabinda

Bose (supra) and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (supra)

do not have any bearing on this case and, therefore, we do not consider it necessary to

deal with the same.

43. In the result, the contempt petitions are dismissed.  However, the parties

are left to bear their own costs.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, April 01, 2009.