MOHD. ASLAM OBHURE, ACCHAN RIZVIversusUNION OF INDIA STATE OF UTTAR PRADESH AND ORS.

A                 MOHD. ASLAM OBHURE, ACCHAN RIZVI
                                        v.
                            UNION OF INDIA
                   STATE OF UTTAR PRADESH AND ORS.

                               OCTOBER 24, 1994
B
              [M.N. VENKATACHALIAH, CJ. AND G.N. RAY, J.]

         Contempt
          I
                   of Courts Act-Contempt proceedings-Failure of obedience
    to judicial pronouncement-If reasonable steps not taken to prevent
    violation of orders of Court-Presumption that Government intended not to
c   take such preventive steps-No immunity for any authority of Government,
    if a personal element shown in act of disobedience of order of Court, from
    consequence ofan order of Court..

        Contempt of Courts Act- Offence of Contempt of Court-Wilful
    disobedience of order of Court-Bahri Masjid Case-Undertaking given by
D   Chief Minister of a State both in his personal capacity and on behalf of his
    Government-Flagrant breach of undertaking-Personal element shown in
    act of disobedience of order of Court-Reasonable steps not taken to
    prevent violation of order of court-Chief Minister of the State convicted of
    an offence of Contempt of Court-Sentence of imprisonment of one day
    with fine of Rs. 2, 000 imposed
E
        A complaint of wilful disobedience of orders of the Supreme Court
    has been _instituted against the then Chief Minister of the State of Uttar
    Pradesh. The subject matter of these contempt proceedings arises out
    of events that occurred during the month of July 1992 in relation to a
F   land in Ayodhya which was acquired by the State Government, the
    acquisition was ostensibly for the purpose of developing the acquired
    land as an amenity for pilgrims at Ayodhya. The acquisition
    proceedings were challenged in those proceedings, the interlocutory
    order came to be made incorporating the undertaking given by the
    Chief Minister before the National Integration Council.
G
         It was alleged in these contempt proceedings that these orders
    made by the Supreme Court have been deliberately and wilfully flouted
    and disobeyed by the State of Uttar Pradesh. Certain affidavits were
    filed pointing out that large scale construction work of a permanent
    nature was carried out on the land in utter disregard of the order of
H   this Court. It was further alleged in these contempt. petitions that the
                                        104
                MOHD. ASLAM v. U.0.1. STATE OF U. P.                 105

then Chief Minister of the State, in view of his ideological and political A
affinity with the Bhartiya Janta Party and the Vishwa Hindu Parishad
and their commitment to the building of Sri Ram Temple, deliberately
encouraged and permitted the grossest violation of the Court's orders.

     The defence in substance was that the constructions were initially
of the nature of a 'levelling operations' done by the State Government B
for the pilgrims. However later the large congregation of Sadhus who
had assembled at the land took upon themselves to make the
co;:istructions and that their number was so large that any coercive
preventive action would have triggered off an adverse reaction and that
even those constructions which were in the nature of platform did not
amount to permanent structure such as were prohibited by the order of C
the Court.

     The questions that arose for consideration were; (1) Whether the
undertaking given by the Chief Minister before the National
Integration Council which was in terms recapitulated and incorporated
in the order of this Court could be said to be an undertaking given by D
the Chief Minister personally or was merely an undertaking on behalf
of the U.P. Government:

    (2) Whether there was any construction of a permanent nature
carried on the land in wilful disobedience of the orders of the Court;
                                                                           E
    (3) Whether these construction activities were carried on by or at
the instance of the State Government or its authorities or were done in
connivance with and assistance and encouragement of State
Government;

    Disposing of the matter, this Court                                    F
    HELD 1.1. On the issue whether there was construction-massive
construction - in violation of the Court's order, no other material than
the very admission of the State authorities are sufficient to justify a
finding that there were such violations of the Court's orders. There was
massive work undertaken and executed on the land in violation of the G
Court's order. (114-H)

     1.2. It is not merely positive acts of violations 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 order of the Court, Government cannot be heard to say H
    106                   SUPREME COURT REPORTS          [1994] SUPP. 5 S.C.R.

A   that violation of the orders were at the instance of others. The
    presumption is that the Government intended not to take such
    preventive ~teps. In the facts and circumstances of the case, this Court
    is unable to persuade itself 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
B   indication that the Government bestirred itself to take any step,
    reasonable or otherwise, to prevent large scale building material
    getting into the site. The Chief Minister of the State of Uttar Pradesh
    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
c   those terms connot 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, there is no explanation at all apart from the fact
D   that the Sadhus had congregated in that place in large number, as to
    what step the Government took to prevent the constructional
    equipment from getting into the site. In the absence, this Court is
    constrained to hold that the Government failed to take steps to prevent
    the grossest violation of the order of this Court. (117-G-H, 118-A-D)
E       William G. Cooper, Member of the Board of Directors of the Little
    Rock v. John Aaron, (348) USl, referred to.

        1.3. On the question as to whether the undertaking furnished by
    the Chief Minister was a personal undertaking or was it on behalf of
    the State of U.P., it is held it was both. (118-E)
F
        1.4. 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. (118-F)

        1.5. The State Government is, therefore, liable in Contempt. A
G
    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. (122-B)

        1.6. The undertaking given by the Chief Minister was both in his
H   personal capacity and on behalf of his Government. (122-C)
                  MOHD. ASLAM v. U.O.I. STATE OF U. P.                     107

     There has been a flagrant breach of that undertaking. There has A
been wilful disobedience of the order. The Chief Minister is convicted
of the offence of Contempt of Court. (122-C)

    In re M v. Home Office, (1994) 1 AC 377 and State of Bihar v. Rani
Sonabati Kumari, AIR (1961) SC 221, relied on.
                                                                                  B
    1.7. Since the contempt raises larger issues which affect the very
foundation of the secular fabric of our nation, the Chief Minister is
sentenced to a token imprisonment for one day with a fine of Rs. 2,000.
                                                                (122-D)

    CIVIL ORIGINAL JURISDICTION: Contempt Petition No. 97/92.                     C
                                      IN

    Writ Petition No. (C) 977 and 972of1991.

    Under Article 32 of the Constitution oflndia.
                                                                                  D
    O.P. Sharma and M.M. Kashyap for the Peitioner.

     V.M. Tarkunde, A.K. Goel, R.B. Misra, Ms. Kamini Jaiswal, B.Y.
Kulkarni, Randhir Jain, Atul Y. Chitale, Ms. Suchitra Chitale, A.P. Medh,
P. Parmeswaran, Ms. A. Subhashini, Uday U. Lalit (N.P.), A.M.
Khanwilkar (N.P.), P.P. Tiwari (N.P.), S. Mukherjee (N.P.) and S.A. Syed          E
for the Respondents.

    The following Order of the Court was delivered.

      These petitions raise certain important issues as to the amenability of
the State and of its Ministers to be proceeded against in contempt for failure    F
of obedience to the judicial pronouncements. These proceedings have the
echo of the disastrous event that ended in the demolition on the 6th
December, 1992 of the disputed structure of 'Ram Janam Bhumi-Babri
Masjid' in Ayodhya. Thousands of innocent lives of citizens were lost,
extensive damage to property caused and more than all a damage to the             G
image of this great land as one fostering great traditions of tolerance, faith,
brotherhood amongst the various communities inhabiting the land was
impaired in the international scene. Though the proceedings for suo motu
contempt against the then Chief Minister of the State of Uttar Pradesh and
its officers in relation to the happening of the 6th December, 1992 were
initiated those are pending and shall be dealt with independently.                H
    108                    SUPREME COURT REPORTS           (1994] SUPP. 5 S.C.R.

A        The subject matter of the present contempt proceedings, however,
    arises out of certain antecedent events that occurred during the month of
    July 1992 in relation to an extent of 2. 77 acres of land in Ayodhya which
    was acquired by the State Government pursuant to a notification dated 7th
    October, 1991, under Section 4 of the Land Acquisition Act, 1894. The
    acquisition was ostensibly for the purpose of developing the acquired land
B   as an amenity for pilgrims at Ayodhya. The acquisition proceedings were
    challenged both before the High Court and this Court. In those proceedings,
    three interlocutory orders came to be made-----two by the High Court and
    one by this Court. In order to put the complaint of wilful disobedience of
    these orders by the State of Uttar Pradesh and its Chief Minister, Sri Kalyan
c   Singh, it is necessary to advert to two of these orders.

         On 15th November, 1991 in W.P. No. 1000 of 1991 this Court made
    the following order :

                   "The pet1t1oners have approached this Court by way of
D                  these petitions under article 32 of the Constitution as Public
                   interest litigation challenging the acquisition covered by
                   two Notifications dated October 7, and October 10, 1991
                   made under Section 4 (1) of the Land Acquisition Act, 1894
                   under which certain property in Faizabad close to Ram-
                   Janma Bhumi-Babri Masjid Complex has been notified for
E                  acquisition for the purpose of development of pilgrimage
                   and providing amenities to-them at Ayodhya."

                   This Court further said :-

                   "In the meantime, as we have been told at the Bar, there was
F                  a meeting at the national level of the l~tegration Council
                   and the Chief Minister of the State as it appears from the
                   affidavit of the Home Secretary of the respondent-State
                   dated 13th of November, 1991 made certain statements to
                   the council. These have been extracted in paragraph 3 of the
                   affidavit and read thus:
G
                   "The Chief Minister has made several statements at the
                   National Integration Council meeting on 2nd November,
                   1991. On the basis of the statements, the resolution of
                   National Integration Council was passed on 2nd November,
H                  1991. The Resolution itself states:"
                 MOHD-ASLAM v. U.0.1. STATE OF U. P.                     109

               "The Council noted the following assurances given by the         A
               Chief Minister of Uttar Pradesh:

               (i) All efforts will be made to find an amicable resolution of
               the issue;

               (ii) Pending a final solution, the Government of Uttar B
               Pradesh will hold itself fully responsible for the protection
               of the Ram Janma Bhumi-Babri Masjid structures;

               (iii) Orders of the Court in regard to the land acquisition
               proceedings will be fully implemented; and

               (iv) Judgml<nt of the Allahabad High Court in the cases          C
               pending before it will not be violated.

               We shall take it, and Mr. Jaitley has no ·objection to our
               doing so, that the State of Uttar Pradesh remains bound by
               what has been stated in this paragraph and this shall be D
               obligation of the State of Uttar Pradesh to stand by our
               order of today which is made after taking into account the
               stand of the State of Uttar Pradesh as disclosed by the Chief
               Minister and reiterated in the affidavit of the Home
               Secretary. It shall, therefore, be taken as a representation to
               the Court on which we have made this Order.                     E
    On 15th July, 1992 the High Court of Allahabad in C.M.A. No. 83 (o)
/92 made and order to the following effect: -

               "Learned Advocate General has prayed for and is allowed 3
               days time to file counter Affidavit. 3 Days time is allowed F
               for filling rejoinder to the petitioner the list immediately
               thereafter (.) k In the meantime the opposite parties are
               restrained from raising any construction on the land (.) If
               there is any necessity for doing something on the land for
               its use, prior permission from the Court would be obtained
               ir                                                               G
    3. The grievance in these contempt proceedings is that those orders
have been deliberately and wilfully flouted and disobeyed by the State of
Uttar Pradesh. Though the petitions for contempt which were lodged in the
months of February and March 1992 respectively, merely alleged there
were demolitions of certain structures in violation of the interdiction in that H
    110                      SUPREME COURT REPORTS             [1994] SUPP. 5 S.C.R.

A   behalf contained in the order of this Court dated 15th November, 1991.
    However, later, on as events developed, certain subsequent events were
    brought to the notice of the Court by affidavits which came to be filed
    pointing out that large scale construction work of a permanent nature was
    carried out on the land in utter disregard of the orders of this Court. By
    order dated 5th August, 1992 this Court while recording the finding that the
B   alleged demolitions did not strictly fall within the interdiction of the order
    of this Court dated 15th November,. 1991, however, found that there were
    certain constructional activity undertaken on the land which prima-facie
    violated the orders of this Court.

         It is to be mentioned in this context that Sri Kalyan Singh, the then
c   Chief Minister of the State of Uttar Pradesh, who was initially eo nomine a
    party in both the proceedings was, however, deleted from the array of
    parties in contempt petition No. 97 of 1992. Sri Kalyan Singh, however,
    continued to be party in contempt petition No. I 02 of 1992 ..

          4. In view of the fact that the allegations of large scale violation of the
D order of this Court and of the High Court were in the subsequent affidavits
    an opportunity was afforded to the State of Uttar Pradesh and Sri Kalyan
    Singh to traverse these allegations. Sri K.K. Venugopal, learned ~enior
    counsel who appeared for both the State of Uttar Pradesh and Sri Kalyan
    Singh made certain statements which are incorporated in the order dated 5th
    August, 1992 :-
E
                     '.'Shri K.K. Venugopal, learned counsel appearing for the
                     respondents in both the contempt cases submitted that the
                      respondents are placed in. a disadvantageous position as to
                      the sufficiency of opportunity to traverse the allegations
F                     made from time to time in these contempt proceedings. He
                      submitted that the two contempt petitions had been filed in
                      the months of February and April 1992 respectively and the
                      ndtices issued to the State of Uttar Pradesh and other
                      respondents confined themselves to certain specific acts of
                      contempt specifically alleged in the petitions as originally
G                     lodged. Learned counsel says that later on, from time to
                      time, the State and other respondents are called upon to
                      meet a shifting and entirely different set of all~gations, said
                     to arise out of certain events that occurred subsequent to the
                      filing of the contempt petitions, particularly in the month of
                      July, 1992.
H
                 MOHD. ASLAM v. U.0.1. STATE OF U. P.                  111

               Shri Venugopal stated that without being understood to be A
               insistent upon a technicality that a further notice on the
               initiation of contempt is required to be issued on the new set
               of allegations, his clients' stand is that they be afforded a
               reasonable opportunity to traverse, in a comprehensive way,
               and cumulatively all the allegatiJns contained in the
               affidavits filed from time to time by both the petitioners, as B
               also traverse the material such as photographs etc. reli~d
               upon in support of the allegations.

                3. We think that this prayer is reasonable and the
                respondents should have such an opportunity. They shall
                meet the case as presented in the affidavits filed by the C
                petitioners in the month of July, 1992 in the pending
                contempt petitions in regard to the allegations of continued
                violation of the orders of the Courts, said to have occurred
              . during the month of July, 1992."

     Thereafter, counter-affidavits were filed by the officers of the U.P. D
Government. Sri Kalyan Singh, however, did not choose to file an affidavit
of his own.

    5. The qravamen of the charge in these contempt petitions is that Sri
Kalyan Singh, the then Chief Minister of the State, in view of his
ideological and political affinity with the Bharatiya Janta Party and the E
Vishwa Hindu Parishad and their commitment to the building of Sri Ram
Temple, deliberately encouraged and permitted the grossest violation of the
Courts' orders.

     The defence in substance, is that the constructions were initially of the
nature of a 'levelling operations' done by the State Government for F
enabling the parikrama facilities for the pilgrims. However later the large
congregation of Sadhus who had assembled at the land took upon
themselves to make the constructions and that even those constructions
which ·were in the nature of a platform did not amount to permanent
structure such as were prohibited by the order of the Court.
                                                                             G
    6. The questions that therefore arise for consideration are :

               (i) Whether the undertaking given. by the Chief Minister
               before the National Integration Council which was in terms
               recapitulated and incorporated in the order dated 15th
               November, 1991 of this Court could be said to be an H
     112                     SUPREME COURT REPORTS            (1994) SUPP. 5 S.C.R.

 A                   undertaking given by the Chief Minister personally or was
                     merely an undertaking on behalf of the U.P. Government;

                     (ii) Whether there were any construction of a permanent
                     nature carried on the land in wilful disobedience of the
                     orders of the Court;
 B
                     (iii) Whether these constructional activities were carried on
                     by or at the instance of the State Government or its
                     authorities or were done in connivance with and assistance
                     and encouragement of the State Government; or were they
                     carried out inspite of all reasonable steps taken in that
 c                   regard by the State Government and the Chief Minister to
                     prevent the same; and

                     (iv) Whether the State Government and the Chief Minister
                     were not liable for contempt for any alleged wilful
                     disobedience of the orders of this Court.
 D
          7. The purport of the defence- as gatherable from the various
     affidavits and counter-affidavits filed from time to time- does not seem to
     dispute that constructions of a substantial nature were carried out on the
     land in the month of July, 1992. Implicit in these admissions is that had
     these works and activities been carried out by the State Government and its
,E   authorities, there would be no doubt whatsoever that constitute a flagrant
     violation of the orders of the Court. What was, however, sought to be
     pleaded was that the area in question, by a long religious tradition in
     Ayodhya, attracts a large number of pilgrims and particularly in the month
     of July which coincides with the period of 'Chaturmas' where a large
     number of Sadhus congregate to celebrate 'Sarvadev Anusthan'. It was
 F   urged that there Pilgrim-Sadhus embarked upon the construction of the
     cement concrete platform and that the number of their was so large that any
     coercive preventive action would have triggered off an adverse reaction
     which might have endangered the safety of the disputed 'Ram Janam
     Bhumi-Babri Masjid Structure' which was situate in the immediate vicinity
     and for whose protection the Government stood committed. In view of
 G   these conflicting considerations and of the risks involved in the operations
     Government felt compelled to abstain from any coercive steps to prevent
     the constructions by the pilgrims. We shall later advert to the merits and
     bona fides of this version. Suffice it to say here that at no point of time did
     the Chief Minister seek before Court to be absolved of his undertaking in
     view of these alleged conditions. They are now put forward as a defence in
 H   the contempt action.
                    MOHD. ASLAM v. U.0.1. STATE OF U. P.                    113

'       8. But it is necessary to say that in a Government of laws and not of A
    men the Executive Branch of Government bears a grave responsibility for
    upholding and obeying judicial orders. It is perhaps worthwhile recalling
    what the Supreme Court of United States observed in William G. Cooper,
    Member of the Board of Directors of the Little Rock v. John Aaron, (358)
    US. I where, in his concurring opinion Justice Frankfurter said:
                                                                                  B
                  "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 C
                  over the law of the Constitution?

                  The historic phrase 'a government of laws and not o_f men'
                  epitomizes the distinguishing character of our political
                  society. When John Adams put that phrase into the D
                  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                 E
                  constitutional organ of the supreme law of the land, has
                  often, throughout our history, depended on active support
                                                              ' such support.
                  by state and local authorities. It presupposes
                  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        F
                  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 G
                   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 Edition p. 193-94) said:     H
    114                     SUPREME COURT REPORTS            [1994] SUPP. 5 S.C.R.

A                  "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 amendable to the jurisdiction
                   of the ordinary tribunals. In England the idea of legal
B                  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
c                  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
D                  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."

         9. In these formative years of our nation building, it is more important
    than ever to recognise that in a pluralist society law is the greatest and the
E   only integrating factor. Respect for law and its institutions is the only
    assurance. that can hold a pluralist nation together. Any attempt to achieve
    solutions of controversies, however, ideologically and emotionally
    surcharged, not on the basis of law and through judicial institutions but on
    the strength of numbers will subvert the fundamental values of our chosen
    political organisation. It will demolish public faith in the accepted
F
    constitutional institutions and weaken people's resolve to solve issues by
    peaceful means. It will destroy respect for the Rule of Law and the
    authority of Courts and seek to place individual authority and strength of
    numbers above the wisdom of law. This is courting disaster, fratricidal
    wars, civil commotion, disruption of everything that we hold sacred. The
G   highest cherished value of our nationhood which is tolerance will be
    distorted by such misguided enthusiasm.

         10. On the issue whether there was construction                   massive
    construction --- in violation of the Courts' orders, no other material than the
    very admissions of the State authorities are sufficient to justify a finding
H   that there were such violation of the Courts' orders.
                 MOHD. ASLAM v. U.0.1. STATE OF U. P.                 BS

     In the Chief Engineer's Report appended to the counter-affidavit of Sri A
Prabhat Kumar, Principal Secretary to the Govt., Home Department, the
following description of the nature of the work occurs:-

               "Foundation concrete has been laid in three layers as
               described in the enclosed site map in plan. It was seen on
               digging from the outer side, that the lowest layer had an B
               average thickness of 62 cm. the middle layer had an average
               thickness of 60 cm. and the upper layer had an average
               thickness of 60 cm., Middle and upper layers have not been
               laid on the whole of the area in which foundation concrete
               has been laid on the lowest layer.
                                                                           c
               Brick wall has been constructed in some part, the height of
               which is 1.56 meters, on the lowest layer of the foundation
               concrete, the location of which has been shown in the
               enclosed site map in plan. The brick work of the wall has
               been done with cement and .sand-mortar. A brick wall
               touching the cut in the earth on mount close to the pipe D
               barricading, has been constructed, the average height of
               which is 2.25 meters and cement and sand mortar has been
               used in it. Its location has been shown in the enclosed site
               map in plan."

    Commenting on the possible purpose of this structure, Sri Prabhat E
Kumar himself says, 'however, according to the statements of those
involved in the construction work it was intended to be the first step
towards putting up of the "Singh Dwar" of the proposed "Ram Mandir" as
and when the same would be constructed."

     In the report dated 18th July, 1992 by the District Magistrate and F
Senior Superintendent of Police, to the Chief Secretary, as to the nature and
extent of construction, while admitting the progress of construction, the
District Magistrate says:-

               "On 18.7.1992 at 8.45 to 9.30 a.m. we met Shri Ashok
               Singal and Shri Onkar Bhave and requested them to have G
               the work stopped in compliance with order dated 15.7.1992
               of the High Court, responsibility for which had been
               entrusted to us. They informed that at 5 p.m. on 17.7.92
               decision was taken in the meeting of about 50 saints at the
               Digamber Akhara that construction will not be stopped. In
               view of this decision construction could not be stopped and H
    116                    SUPREME COURT REPORTS             [1994) SUPP. 5 S.C.R.

A                  they suggested that talks may be held with members of
                   Temple Renovation Committee."

         11. This Court constituted a committee consisting of Sri S. Rai,
    Registrar_ General, Supreme Court; Professor K.K. Nayar, IIT Delhi; and
    Professor Arvind Krishan, School of Planning and Architecture, New Delhi.
B
        In the report of the Committee, the nature and the extent of
    construction is described thus:-

                   "The area built-up can be visualised as 5 north-south strips
                   arranged from the east to the west (for the purpose of
                   computation and reference as shown in Appendix A2- l.
c                  Areas and dimensions of the first four strips increase step
                   by step from one another. the fifth strip is cut back both in
                   area and dimension. There are 3 layers of concrete in the
                   structure (Annexure Al-2.). The first layer is about 0.62 m.
                   thick and it covers the full area of l 060 sq. m. except for a
D                  circular opening of 7 .1 m. diameter in the centre of the 4th
                   strip. On the northern side, the top level of this layer of
                   concrete merges with· the ground. On all other sidei; this
                   layer is only l 0 cm. below the ground level. The second
                   layer is 0.6 m. thick and has an area 0f 560 sq.m., including
                   the circular opening. It is laid on the first layer over the
E                  strips 2 to 5 and with set-backs. Both these layers are fairly
                   symmetrical about the east-west axis, except for small
                   irregularities in the dimensions. The third layer is also 0.6
                   m. thick but covers only a small area of 130 sq.m. Bulk of
                   concrete is laid on the south-west region of the structure. In
                   general, the second and third layers have poor surface
F                  finish. The concrete casting work is unfinished.

                   However, if one desires, a modified form of a classical
                   temple can be related to this configuration.

                   As already stated in Paragraphs 2 (a) .04. l to 2 (a) .04.4, the
G                  magnitude of the work is such that it could not have been
                   carried out without the use of construction equipments such
                   as water-tankers, cement concrete mixers, concrete
                   vibrators, earth moving equipment etc."

        There is, therefore, no manner of doubt that substantial work, indeed
H   very substantial work, involving tonnes of cement and concrete deployed




                                                                                      (
                  MOHD. ASLAM v. U.O.I. STATE OF U. P.                       117

 with the help of constructional machinery was carried on at the site. The A
photegraphs produced by the complainant- which are not disputed-
indicate the gathering of workers. A mere perusal of the photographs
justifies an inference that the large work force at the site does not consist of
mere Sadhus but justifies the inference that professional workmen had been
deplo,yed at the site.
                                                                                    B
     12. We must, however, indicates that the report of the Expert
Committee headed by Sri S. Rai, Registrar General, was of the month of
August, l 992. But the significance of the report as to the nature and extent
of work and whether it could be related to the month of July is determined
by the fact that on Uttar Pradesh Govt.'s own admission the work had
stopped on 26th July, 1992. It is, therefore, permissible t<;> relate the factual   C
state of construction indicated in the Expert Committee's Report to ,what
must be presumed to have been carried out in the month of July, 1992 itself.
We have no hesitation in finding that there was massive work undertaken
and executed on the land in violation of the Court's orders.

     13. The next question is whether these activities were carried on by a         D
congregation of Sadhus at the site and not by the State Govt. 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 Janam Bhumi-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          E
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          F
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      G
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        H
    118                     SUPa,EME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A   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
B   terms of that assurance to be incorporated at his own undertaking tq 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
c   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
D   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.                    ·

        14. The last question is whether the undertaking furnished by the Chief
    Minister was a personal undertaking or was on behalf of the State ofU.P. It
E   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
F   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 'In re M. v. Home Office', (1994) 1 AC 377, observed (as per Lord
    Templeman) :-
G
                    "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 17th century Parliament
                    established its supremacy over the Crown as monarch, over
H                   the executive and over the judiciary. Parliamentary
                 MOHD. ASLAM v. U.0.1. STATE OF U. P.                   119

               supremacy over the Crown as monarch stems from the fa_ct        A
               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        B
               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        C
               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     D
               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 E
ministers in their official capacity and in their personal capacity, the courts
are armed with coercive powers exercisable in proceedings for contempt of
1,'.0Urt."


               "My Lords, the argument that there is no power to enforce F
               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, G
               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."
                                                                               H
    120                     SUPREME COURT REPORTS             [1994] SUPP. 5 S.C.R.

A       However, in that case it was found as a matter of fact that there was no
    personal element involved in the violation at the instance of the Home
    Secretary, Mr. Baker. Therefore, Lord Templeman observed:-

                    "I am also satisfied that Mr. Baker was throughout acting in
                    his official capacity, on advice which he was entitled to
B                   accept and under a mistaken view as to the law. In these
                    circumstances I do not consider that Mr. Baker personally
                    was guilty of contempt."

          In the leading speech Lord Woolf said

c                   "This was the first time that a minister of the Crown had
                    been found to be in contempt by a court. The finding of
                    contempt was made for not complying with an injunction
                    granted by Garland J. ordering M., who had made a claim
                    for asylum.i_ which was rejected by the Home Office, to be
                    returned to'-this country."
D
                    "Nolan, L.J., at p. J 11, considered that the fact that
                     proceed~ngs for contempt are "essentially personal and
                    punitive" meant that it was not open to a court, as a matter
                    -of law, to make a finding of contempt against the Home
                     Office or the Home Secretary. While contempt proceedings
E
                     usually have these characteristics and contempt proceedings
                     against a government department or a minister in an official
                     capacity would not be either personal or punitive (it would
                     clearly not be appropriate to fine or sequestrate the assets of
                     the Crown or a government department or an officer of the
F                    Crown acting in his official capacity), this does not mean
                     that a finding of contempt against a government department
                     or minister would be pointless. The very fact of making
                     such a finding would vindicate the requirements of justice.
                     In addition an order for costs could be made to underline
                    the significance of a contempt. A purpose of the courts'
G                   powers to make findings of contempt is to ensure that the
                    orders of the court are obeyed. This jurisdiction is required
                    that the orders of the court are obeyed. This jurisdiction is
                    req1,1ired to be coextensive with the courts' jurisdiction to
                     make the orders which need the protection which the
H                   jurisdiction to make findings of contempt provides."
                MOHD. ASLAM v. U.0.1. STATE OF U. P.                   121

              "Normally it will be more appropriate to make the order A
              against the office which a minister holds where the order
              which has been breached has been made against that office
              since members of the department concerned will almost
              certainly be involved and investigation as to the part played
              by individuals is likely to be at least extremely difficult, if
              not impossible, unless privilege is waived (as commendably B
              happened in this case). In addition the object of the exercise
              is not so much to punish an individual as to vindicate the
              rule of law by a finding of contempt. This can be achieved
              equally by a declaratory finding of the court as to the
              contempt against the minister as representing the
              department. By making the finding against the minister in C
              his official capacity the court will be indicating that it is the
              department for which the minister is re~ponsible which has
              been guilty of contempt. The minister himself may or may
              not ha.ve been personally guilty of contempt. The position
              so far as he is personally concerned would be the equivalent D
              of that which needs to exist for the court to give relief
              against the minister in proceedings for judicial review."

              "To draw a distinction between his two personalities would
              be unduly technical. While he was Home Secretary the
              order was one binding upon him personally and one for the E
              compliance with which he as the head of the department
              was personally responsible."

   In the State ofBihar v. Rani Sonabati Kumari, AIR ( 1961) SC 221 this
Court approved the following view of Chakravartti, C.J., in AIR 1952 Cal.
919:                                                                      F
              "I do not say that in fit cases a writ for contempt may not b;
              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 · G
              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 H
    122                      SUPREME COURT REPORTS          [1994) SUPP. 5 S.C.R.

A                    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
B   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.

         15: We find that the undertaking given by Sri Kalyan Singh was both
    in his personal capacity and on behalf of his Government. There has been a
c   flagran(breach of that undertaking. There has been wilful disobedience of
    the order.

         16. It is unhappy that a leader of a political party and Chief Minister
    has to be convicted Of an offence of Contempt of Court. But it has to be
    done to uphold the majesty of law. We convict him of the offence of
D   contempt of Court. Since the contempt raises larger issues which affect the
    very foundation of the secular fabric of our nation, we also sentence him to
    a token imprisonment of one day. We also sentence him to pay a fine of Rs.
    2,000. The fine shall be paid within a period of two months. For the
    sentence of imprisonment a warrant will issue.
E         The contempt petitions are partly disposed of accordingly.

    A.G.                                             Petitions partly disposed of.