AMICUS CURIAE v.

PRASHANT BHUSHAN & ANR. (Contempt Petition (Crl.) No. 10 of 2009)

JULY 14, 2010 [ALTAMAS KABIR, CYRIAC JOSEPH AND H.L. DATTU, JJ.]

2010 (8) SCR 723

The order of the Court was delivered by

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 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 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  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  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.”

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,  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 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 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 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  

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, 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  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 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 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 merits on the available papers and affidavits  

on 10th November, 2010.