REPORTABLE

IN THE SUPREME COURT OF INDIA ORIGINAL APPELLATE JURISDICTION

CONTEMPT PETITION (CRL.) NO.10 OF 2009 IN  

INTERLOCUTORY APPLICATION NOS.1324, 1474, 2134  OF 2007  

IN WRIT PETITION (C) NO.202 OF 1995

Amicus Curiae      ..Petitioner  Vs.

Prashant Bhushan & Anr.                ..Respondents

O R D E R

ALTAMAS KABIR, J.   1. During  the  course  of  hearing  of  certain  

Interlocutory  Applications  in  Writ  Petition  (C)

No.202 of 1995, an application was filed by the  

Amicus Curiae, Mr. Harish N. Salve, learned Senior  

Advocate, drawing the attention of this Court to  

certain statements made by Respondent No.1, Shri  

Prashant  Bhushan,  Senior  Advocate,  which  was  

reported in Tehelka magazine, of which Shri Tarun  

J. Tejpal, the Respondent No.2, was the Editor-in-

Chief.   The  learned  Amicus  Curiae  drew  the  

attention of the Court to certain statements which  

had  been  made  by  the  Respondent  No.1  in  an  

interview  given  to  Ms.  Shoma  Chaudhury,  wherein  

various statements were made alleging corruption in  

the judiciary and, in particular, the  higher  

judiciary, without any material in support thereof.  

In the interview he went on to say that although he  

did not have any proof for his allegations, half of  

the last 16 Chief Justices were corrupt.  He also  

made a serious imputation against the Hon’ble the  

Chief Justice of India, Justice S.H. Kapadia, as  

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His Lordship then was, alleging misdemeanor with  

regard  to  the  hearing  of  a  matter  involving  a  

Company known as Sterlite, in which Justice Kapadia  

had  certain  shares,  deliberately  omitting  to  

mention that the said fact had been made known to  

the  Counsel  appearing  in  the  matter,  who  had  

categorically  stated  that  they  had  no  objection  

whatsoever  to  the  matter  being  heard  by  His  

Lordship.   

2. On 6th November, 2009, when the said facts were  

placed before the Bench presided over by Hon’ble  

the  Chief  Justice,  K.G.  Balakrishnan,  as  His  

Lordship  then  was,  in  which  Justice  Kapadia  was  

also  a  member,  directions  were  given  to  issue  

notice and to post the matter before a three Judge  

Bench of which Justice Kapadia was not a member.  

It  should,  however,  be  indicated  that  Justice  

Kapadia was not a party to the aforesaid order that  

was  passed.   The  matter  was  thereafter  placed  

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before us on 19.01.2010 for consideration.  On the  

said  date,  we  requested  Mr.  Harish  N.  Salve,  

learned Senior Advocate, to continue to assist the  

Court  as  Amicus  Curiae  in  the  matter  which  was  

directed to be listed for further consideration as  

to whether on the basis of the prayers made in the  

application,  this  Court  should  take  suo  motu  

cognizance  of  the  alleged  contempt  said  to  have  

been  committed  by  the  respondents  in  the  

application which was numbered as Contempt Petition  

(Crl.) No.10 of 2009.

3. The matter was, thereafter, heard at length by  

us  on  the  question  of  maintainability  of  the  

contempt proceedings and also on the question as to  

whether this Court should take suo motu cognizance  

and proceed accordingly.

4. Mr.  Ram  Jethmalani,  learned  Senior  Advocate  

appearing  for  the  Respondent  No.1,  Mr.  Prashant  

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Bhushan,  Advocate,  submitted  that  the  contempt  

proceeding was not maintainable not only on account  

of the provisions of Section 15 of the Contempt of  

Courts Act, 1971, but also in view of the 1975  

Supreme  Court  Rules  regarding  proceedings  for  

Contempt.  He submitted that the report published  

in  Issue  No.35  of  Volume  6  of  Tehelka  magazine  

dated  5th September,  2009,  which  comprised  the  

contents of the interview given by the Respondent  

No.1  to  the  Tehelka  magazine,  had  been  placed  

before  the  Court  on  6th November,  2009  and  upon  

hearing the counsel present, the Court directed the  

matter to be taken on board and directed notice to  

issue.   

5. Mr. Jethmalani submitted that in relation to  

matters involving contempt of the Supreme Court,  

Rules have been framed by the Supreme Court itself  

under powers vested in it under Section 23 of the  

Contempt of Courts Act, 1971, read with Article 145  

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of  the  Constitution  of  India.   The  said  Rules  

described as the Rules to Regulate Proceedings for  

Contempt of the Supreme Court, 1975, laid down the  

procedure  to  be  followed  in  matters  relating  to  

taking of cognizance of criminal contempt of the  

Supreme Court under Section 15 of the Contempt of  

Courts Act, 1971.  Mr. Jethmalani submitted that  

Rule 3 of the aforesaid Rules enables the Court to  

take action in a case of contempt other than the  

contempt committed in the face of the Court and  

provides as follows :

“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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6. Mr. Jethmalani submitted that the order passed  

on 6th November, 2009 was not on suo motu cognizance  

taken by this Court, nor on a petition made by the  

Attorney General for India or Solicitor General of  

India  and  must,  therefore,  have  been  made  under  

Rule 3(c) on a petition made by the Amicus Curiae,  

Mr.  Harish  N.  Salve,  Senior  Advocate,  in  which  

case, the same ought not to have been entertained  

without  the  consent  in  writing  of  the  Attorney  

General  or  Solicitor  General.   Mr.  Jethmalani  

submitted  that  in  that  view  of  the  matter,  the  

contempt proceedings were without jurisdiction and  

could not be proceeded with.

7. Mr. Jethmalani also urged that even Rule 6 of  

the  aforesaid  Rules  had  not  been  followed,  as  

notices have not been issued to the respondents in  

Form  1,  as  prescribed  and  the  proceedings  were,  

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therefore, liable to be discontinued on such ground  

as well.   

8. In support of his aforesaid submissions, Mr.  

Jethmalani referred to and relied upon the decision  

of this Court in  P.N. Duda vs.  P. Shiv Shanker &  

Ors. [(1988) 3 SCC 167], in which the provisions of  

Section 15(1)(a) and (b) of the Contempt of Courts  

Act, 1971, read with Explanation (a) and Rule 3(a),  

(b) and (c) of the Contempt of Supreme Court Rules,  

1975, had been considered in paragraphs 53 and 54  

of  the  judgment.   It  was  pointed  out  that  a  

direction had been given by this Court that if any  

information  was  lodged  even  in  the  form  of  a  

petition inviting this Court to take action under  

the Contempt of Courts Act or Article 215 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 for admission on the judicial side.  On  

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the other hand, such a petition was required to be  

placed  before  the  Chief  Justice  for  orders  in  

Chambers and the Chief Justice could decide, either  

by himself or in consultation with the other judges  

of the Court, whether to take any cognizance of the  

information.  Mr. Jethmalani submitted that since,  

despite  the  aforesaid  direction,  the  application  

filed by the Amicus Curiae had been placed before  

the Court in its judicial side, the same was not  

maintainable  on  such  score  as  well  and  the  

proceedings were liable to be discontinued on such  

ground also.

9. Mr. Jethmalani also referred to the decision of  

this Court in Bal Thackrey vs. Harish Pimpalkhute &  

Ors. [(2005) 1 SCC 254], wherein in the absence of  

the consent of the Advocate General in respect of a  

contempt petition filed by a private party under  

Section 15 of the Contempt of Courts Act, without a  

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prayer for taking suo motu action of contempt, was  

held to be not maintainable.

10. Mr. Jethmalani urged that the power vested in  

the High Courts and the Supreme Court under the  

Contempt  of  Courts  Act,  1971,  was  a  regulatory  

measure  imposing  a  fetter  on  a  citizen’s  

fundamental right to freedom of speech and would  

have  to  be  invoked  and  exercised  with  utmost  

caution so as not to infringe upon such fundamental  

right.   Any  deviation  from  the  prescribed  Rules  

should not be accepted or condoned lightly and must  

be deemed to be fatal to the proceedings taken to  

initiate action for contempt.

11. Mr.  Shanti  Bhushan,  learned  Senior  Advocate,  

who appeared for Respondent No.2, while reiterating  

the submissions made by Mr. Ram Jethmalani, laid  

special  stress  on  the  decision  in  Duda’s  case  

(supra) and reiterated the directions given in such  

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case to the effect that the application made by the  

Amicus Curiae could have been placed only before  

the Chief Justice in Chambers on the administrative  

side and not on the judicial side.  Mr. Shanti  

Bhushan submitted that in matters such as this, the  

reputation of the Court had to be considered and in  

view of the deviation from the normal procedure,  

which  was  meant  to  be  strictly  adhered  to,  the  

contempt  proceedings  and  notice  issued  on  the  

aforesaid application, were liable to be dropped.  

12. We have given our careful consideration to the  

submissions made by Mr. Jethmalani and Mr. Shanti  

Bhushan,  learned  Senior  Advocates,  regarding  the  

maintainability of the contempt proceeding, but we  

are not inclined to accept the same.

13. The learned Amicus Curiae, Mr. Harish Salve,  

filed an application in an ongoing proceeding to  

bring to the knowledge of the Hon’ble Chief Justice  

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of India certain statements made by the Respondent  

No.1 in an interview given to the Tehelka magazine  

deliberately aimed at tarnishing the image of the  

judiciary as a whole, and, in particular, a sitting  

Judge of the Supreme Court, in the eyes of the  

general  public  without  any  foundation  or  basis  

therefore.  By publishing the said interview, the  

Respondent No.2 was also responsible for lowering  

the dignity of this Court in the eyes of all stake  

holders  in  the  justice  delivery  system.   Prima  

facie, a case for issuance of notice having been  

made  out,  the  Hon’ble  Chief  Justice  of  India  

directed issuance of notice to the Respondents to  

show cause in regard to the allegations contained  

in  the  application  filed  by  the  learned  Amicus  

Curiae.  The error committed by the Registry of the  

Supreme Court in placing the matter on the judicial  

side instead of placing the same before the Hon’ble  

Chief Justice of India on the administrative side,  

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is an administrative lapse which does not reduce  

the gravity of the allegations.  Even in  Duda’s  

case (supra) and more explicitly in Bal Thackrey’s  

case, it has been indicated by this Court that it  

could  have  taken  suo  motu cognizance,  had  the  

petitioners prayed for it, even without the consent  

of the Attorney General, but that such a recourse  

should be confined   to rare occasions only.

14. The matter may require further consideration,  

but we are not inclined to hold that the contempt  

proceedings  are  not  maintainable  for  the  above-

mentioned reasons.  Primarily, certain information  

was brought to the notice of the Chief Justice of  

India on which action was taken. In other words,  

notwithstanding the prayer in the application made  

by the learned Amicus Curiae, the Chief Justice of  

India took cognizance and directed notice to issue  

thereupon. The issues involved in these proceedings  

have far greater ramifications and impact on the  

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administration of justice and the justice delivery  

system and the credibility of the Supreme Court in  

the eyes of the general public than what was under  

consideration  in  either  Duda’s  case  or  Bal  

Thackrey’s case (supra). In our view, even though  

suo motu cognizance was taken in this case, this is  

one  of  those  rare  cases  where,  even  if  the  

cognizance is deemed to have been taken in terms of  

Rule 3 (c) of the Rules to Regulate Proceedings for  

Contempt of the Supreme Court, 1975, without the  

consent of the Attorney General or the Solicitor  

General,  the  proceedings  must  be  held  to  be  

maintainable.

15. Thus, on  prima facie satisfaction that there  

were sufficient grounds for taking action on its  

own motion, the Court initiated suo motu action by  

directing  issue  of  notice  to  the  Respondents.  

Hence,  the  present  contempt  proceeding  was  

initiated by the Court on its own motion and it is  

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not covered by clauses (a), (b) and (c) of sub-

section (1) of Section 15 of the Contempt of courts  

Act, 1971 or clauses (b) and (c) of Rule 3 of the  

Rules to Regulate Proceedings for Contempt of the  

Supreme  Court,  1975.   On  the  other  hand,  the  

present proceeding is covered by clause (a) of rule  

3  of  the  said  Rules.   Merely  because  the  

information  regarding  the  allegedly  contemptuous  

statements made by Respondent No.1 and published by  

Respondent No.2 was furnished to the Court by the  

learned Amicus Curiae, the proceeding cannot lose  

its nature or character as a suo motu proceeding.  

The learned Amicus Curiae was entitled to place the  

information in his possession before the court and  

request the court to take action.  The petition  

filed by him constituted nothing more than a mode  

of laying the relevant information before the court  

for such action as the court may deem fit.  No  

proceedings can commence until and unless the court  

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considers the information before it and decides to  

initiate proceedings.  If the court considers the  

information  placed  before  it  and  initiates  

proceedings  by  directing  notice  to  issue  to  the  

alleged contemnors the action taken comes within  

the ambit of Rule 3(a) of the Rules to Regulate  

Proceedings  for  Contempt  of  the  Supreme  Court,  

1975.

16. Hence, the objections raised by the Respondents  

against  the  maintainability  of  the  present  

proceedings are without any basis.   

 17. We,  therefore,  hold  these  proceedings  to  be  

maintainable and direct that the matter be placed  

for hearing on merits.  The respondents will be  

entitled to file further affidavits in the matter  

within  eight  weeks  from  date.  Thereafter,  

notwithstanding  the  provisions  of  Rule  9  of  the  

1975 Rules, let the matter be placed for hearing on  

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merits on the available papers and affidavits on  

10th November, 2010.

         ________________J.

(ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

________________J. (H.L. DATTU)

New Delhi, Dated: July 14, 2010.     

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