AMICUS CURIEversusPRASHANT BHUSHAN & ANR.

                     [2010] 8 S.C.R. 723


                      AMICUS CURIAE                                  A
                               v.
              PRASHANT BHUSHAN & ANR.
          (Contempt Petition (Crl.) No. 10 of 2009)

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

   RULES TO REGULATE PROCEEDINGS                            FOR
CONTEMPT OF THE SUPREME COURT, 1975:                                 C
     rr. 3(a) and (c) - Contempt proceedings - Maintainability
of - Application by amicus curaie before the Bench presided
over by the Chief Justice of India, drawing the attention of the
Court to certain statements reported in a magazine alleging          0
corruption in judiciary, and, in particular, higher judiciary, and
also making serious imputation against a sitting Judge of the
Court - Directions given to-issue notice and to post the matter
before a three-Judge Bench - Plea that the order issuing
notice being neither on suo motu cognizance taken by the
                                                                     E
Court nor on a petition made by either of the persons
mentioned in r.3(b) but, the petition having been made by
amicus curaie under r.3(c) was not maintainable - Held:
Merely because the information regarding the alleged
contemptuous statements was furnished to the Court by the
Amicus Curiae, the proceedings cannot lose its nature or             F
character as suo motu proceedings - Primarily, certain
information was brought to the notice of the Chief Justice of
India on which action was taken - Thus, notwithstanding the
prayer in the application made by the Amicus Curiae, the
Chief Justice of India took cognizance and directed notice to        G
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

                              723                                    H
    724      SUPREME COURT REPORTS                [2010] 8 S.C.R.


A the credibility of the Supreme Court in the eyes of the general
  public than what was under consideration in either Ouda's
  case* or Bal Thackrey's case** - 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
s taken in terms or r. 3 (c) of the Rules, without the consent of
  the Attorney General or the Solicitor General, the proceedings
  must be held to be maintainable - Thus, on prima facie
  satisfaction that there were sufficient grounds for taking action
  on its own motion, the Court ·1itiated suo motu action by
c directing issue of notice to the respondents - Therefore, the
  instant contempt proceeding was initiated by the Court on its
  own motion and it is neither covered by clauses (a}, (b) and
  (c) of sub-s. (1) of s.15 of the Contempt of Courts Act, 1971
  nor by clauses (b} and (c) of r. 3 of the Rules, but is covered
  by clause (a) of r. 3 of the Rules - The proceedings are
0
  maintainable - Contempt of Courts Act, 1971 - ss. 15 and
  23 - Constitution of India, 1950 -·Articles 129 and 145.

        *P.N. Duda vs. P. Shiv Shanker & Ors. (1988) 3 SCC
    167; **Bal Thackrey vs. Harish Pimpalkhute & Ors. (2005) 1
E   SCC 254, referred to.

                         Case Law Reference:

          (1988) 3 sec 167        referred to           para 8

F         (2005) 1 sec 254        referred to           para 9

          CRIMINAL ORIGINAL JURISDICTION : (Contempt Petition
    (Crl.) No. 10 of 2009).

                                    IN
G
          I.A. No. 1324, 1474 & 2134

                                    IN

          WRIT PETITION (C) No. 202 of 1995.
H
AMICUS CURIAE v. PRASHANT BHUSHAN & ANR.                     725


     Harish N. Salve, (A.C.), Ram Jethamalani, Shanti Bhushan,       A
A.D.N. Rao, Meenakshi Grover, Kamini Jaiswal, Divyesh
Pratap Singh, P.R. Mala, Saurabh Ajay Gupta, Pranav Diesh,
Mazag Andrabi, Mayank Mishra, Abhishek Sood, Vivek
Bishnoi, Rohit Kumar Singh for the appearing parties.
                                                                     B
    The order of the Court was delivered by

                             ORDER

     ALTAMAS KABIR, J. 1. During the course of hearing of
certain Interlocutory Applications in Writ Petition (C) No.202 of    C
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                 o
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,   E
the higher judiciary, without any material in supp6rt 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
                                                                     F
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      G
by His Lordship.

    2. On 6th November, 2009, when the said facts were
placed before the Bench presided over by Hon'ble the Chief
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       726      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A      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
o      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
c:     c ms1deration 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.
c'--   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
F 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
G 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
H framed by the Supreme Court itself under powers vested in it
 AMICUS CURIAE v. PRASHANT BHUSHAN & ANR.                  727
             [ALTAMAS KABIR, J.]
under Section 23 of the Contempt of Courts Act, 1971, read         A
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              B
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
                                                                   c
     to in rule 2, the Court may take action: -

             (a)   suo motu, or

             (b)   on a petition made by Attorney General, or      o
                   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."                             E

     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      F
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          G
contempt proceedings were without jurisdiction and could not
be proceeded with.

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

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    728     SUPREME COURT REPORTS                  [201 OJ 8 S.C.R.


A   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
8
    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
C   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
D   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
E   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
F   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
G 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.

H
 AMICUS CURIAE v. PRASHANT BHUSHAN & ANR. 729
             [ALTAMAS KABIR, J.]

      10. Mr. Jethmalani urged that the power vested in the High   A
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       B
prescribed Rules should not be accepted or condoned lightly
and must be deemed to be fatal fo the proceedings taken to
initiate action for contempt.

     11. Mr. Shanti Bhushan, learned Senior Advocate, who          C
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       D
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            E
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     F
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      G
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
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    730      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A 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
B 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
c 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,
0
  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
E 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
F 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
G 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
H
AMICUS CURIAE v. PRASHANT BHUSHAN & ANR.                    731
            [ALTAMAS KABIR, J.]
Court, 1975, without the consent of the Attorney General or the     A
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
                                                                    8
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     C
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          D
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     E
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            F
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.
                                                                    G
     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
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    732     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   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
B   papers and affidavits on 10th November, 2010.

    R.P.                             Contempt Petition Adjourned.