Holding

The petition is dismissed; the minister's speech does not constitute contempt, and the Attorney General and Solicitor General's refusal to grant consent is not reviewable.

Summary

The petitioner, P.N. Duda, sought initiation of contempt proceedings against former Law Minister P.S. Shiv Shankar for remarks made in a Bar Council speech that allegedly disparaged the Supreme Court. The petition also impleaded the Attorney General, Solicitor General, and a newspaper editor, alleging refusal of consent to file a contempt petition. The Court examined the speech in its entirety and held that, while some language was intemperate, it did not bring the administration of justice into disrepute and therefore did not amount to contempt. It further ruled that a contempt petition under Section 15(1) of the Contempt of Courts Act is not maintainable without the written consent of the Attorney General or Solicitor General, and that their refusal to give consent is not subject to judicial review. Consequently, the petition was dismissed and the application by Shri R.N. Trivedi was disposed of.

Issues considered

The speech by P.S. Shiv Shankar amounts to contempt of the Supreme Court.
Whether a contempt petition can be maintained without the consent of the Attorney General or Solicitor General under Section 15(1) of the Contempt of Courts Act.
Whether the Attorney General and Solicitor General can be made parties to a contempt petition.
The justiciability of the Attorney General's or Solicitor General's refusal to grant consent.
The correct procedural form for filing an information or petition under the Supreme Court Contempt Rules.

Legislation cited

Constitution of Indias. Article 129, s. Article 145, s. Article 215, s. Article 76
Contempt of Courts Act, 1971s. 15, s. 2
Supreme Court (Contempt of Court) Rules, 1975s. 10, s. 3(a), s. 3(b), s. 3(c), s. 4, s. 5, s. 6

Subjects

contempt of courtfreedom of speechAttorney GeneralSolicitor Generalconsent requirementSupreme Courtjudicial criticismprocedural lawjudicial accountability

Judgment

)'
P.N. DUDA
A
Y.
P. SHIV SHANKAR & OTHERS

APRIL 15, 1988
j [SABYASACHI MUKHARJ! AND S. RANGANATHAN, JJ.] B

Contempt of Courts Act, 1971-Prayingfor initiation of proceed-
ings for Contempt of Supreme Court under section 15( J)(a) and (bi
·~ of-Read with rule 3(aj, (b) and (c) of Supreme Court Contempt of Court
Rules, 1975, in respect of a speech delivered at a meeting of Bar
Council, reported in newspapers.
'+ c
The respondent No. 1, Shri P. Shiv Shankar, Minister of Law,
Justke and Company Affairs at the relevant time, delivered a speech at
a meeting of the Bar Council of Hyderabad. The petitioner alleged that
in that speech the respondent No. 1 had made statements derogatory to
the dignity of the Supreme Court, attributing to the Court partiality D
towards affluent people and using extremely intemperate and undigni-
fled language, and that the speech contained slander cast on this Court
both in respect of the Judges and the working of the Court. He stated
....\ that he had approachell the Attorney General for India and the
Solicitor General of India to give their consent for initiating Contempt
proceedings. The Attorney General and the Solicitor General having E
declined to deal with this prayer of the petitioner, an application for
initiation of Contempt under section lS(l)(a) and (b) of the Act read
with Explanation (1) and Rule 3(a), (b) and (c) of the contempt of
Supreme Court Rules, 1975, was made, wherein Shri P. Shiv Shankar,

, the Attorney General, the Solicitor General were made parties. The
Court issued notice. In response, Shri P. Shiv Shankar filed an F
affidavit, stating that he had delivered the speech on the subject of
accountability of the Legislature, Executive and the Judiciary and had
made comments on the accountability of the three organs and the
theoretical implications thereof, and that he had intended no disrespect
to any of the institutions or its functionaries ·much less the Supreme
Court. It was further stated that the Contempt petition was not main- G
~ tainable without the consent of the Attorney General or the Solicitor
General. In the meantime, Shri R.N. Trivedi, Advocate, filed an appli-
cation, claiming right to be impleaded as a party, stating that the
Attorney General and the Solicitor General should not have been made
parties to the comtempt petition and that the alleged non-exercise of
the jurisdiction by the Attorney-General and the Solicitor General had H
547
548 SUPREME COURT REPORTS [19881 3 S.C.R.

not constituted contempt within the meaning of section 2(c) of the Act.
A

Declining to initiate the contempt proceeding and dismissing the
peiitioii and disposing of the application filed by Shri R.N. Trivedi, the
Court,

B HELD: Per Sabyasachi Mukharji, J.: ~

Before deciding the question whether this application was main-
tainable without the consent of the Attorney General or the Solicitor
General, as contended by Dr. Chitale on behalf of Shri Shiv Shankar, )\.

c
and the question whether the Attorney General and the Solicitor
General could be made parties to the Contempt application and
whether their action or inaction was justiciable at all in any proceeding
,, '

and, if so, in what proceedings it was necessary to decide the basic
question whether the speech made by Shri P. Shiv Shankar had
amounted to contempt of this Court, or in other words, whether the
speech had the effect of bringing this Court into disrepute. [S62H; 563A-B I
D
Administration of justice and Judges are open to public criticism
and public scrutiny. Judges have their accountability to the society
and their accountability must be judged by their conscience and oath of
their office, that is to defend and uphold the Constitution and the laws )...
without fear and favour. This the Judges must do in the light given to
E them to determine what is right. Any criticism about the judicial system
or the Judges which hampers the administration of justice or which

,,
erodes the faith in the objective approach of Judges and brings
administration of justice into ridicule must be prevented. The contempt
of Court proceedings arise out of that attempt. Judgments can be
criticised, motives of the Judges need not be attributed. It brings
F the administration of Justice into deep disrepute. Faith in the adminis-
!ration of justice is one of the pillars through which democratic
institution functions and sustains. In the free market place of ideas,
criticism about the judicial system or Judges should be welcomed, so
long as such criticisms do not impair or hamper the administration of
justice. This is how the courts should approach the powers vested in
G them as judges to punish a person for an alleged contempt, be it by
taking notice of the matter suo motu or at the behest of the litigant or )-
lawyer. [S63C-FI

In this case, the Court had examined the entire speech. Shri P.
Shiv Shankar had examined the class composition of the Supreme
H Court. His view was that the class composition of any instrument indi-
P.N. DUDA v. P.S. SHANKAR 549
)
cated its predisposition, prejudices. This is inevitable. The intuition
A
more subtle than major premise, on which the decision will depend, is
the pride and the prejudice of a human instrument of a Judge through
which objectively the Judge seeks to administer justice according to
law. So, in a study of accountability, if class composition of the people
manning the institution is analysed, there has to be forewarning about
J. certain inclination and it cannot be said that an expression or view or B
propagation of that view hampers the dignity of the Courts or impairs
the administration of justice. [565F-H; 566A]
•.
~- It has to. be admitted frankly and fairly that there has been
erosion of faith in the dignity of the Court and in the majesty oflaw and
that has been caused not so much by scandalising remarks made by
¥ politicians or ministers but the inability of the courts of law to deliver c
quick and substantial justice to the needy. It is a criticism which judges
and lawyers must make about themselves. We must turn the search
light inwards. At the same time, the Court cannot be oblivious of the
attempts made to decry or denigrate the judicial process, if it is
seriously done. This question was examined in Rama Dayal Markarha D
v. State of Madhya Pradesh, [1978] 3 S.C.R. 497, where it was held that
fair and reasonable criticism of a judgment which is a public document
or which is a public act of a Judge concerned with administration of
justice would not constitute contempt. In fact, such a fair and reason-
..... able criticism must be encouraged because after all no one, much less
Judges, can claim infallibility. Such a criticism may fairly assert that E
the judgment is incorrect or an error has been committed with regard
to law or established facts. But when it is said that the Judge had a pre-
disposition to convict or deliberately took a turn in discussion of
evidence because be had already made up his mind to convict the
accused or has a wayward bend of mind, is attributing motives, lack of

r
dispassionate and objective approach and analysis and pre-judging of F
issues, that would bring administration of justice into ridicule. Such
criticism sometime interferes with the administration of justice and
that must be judged by the yardstick whether it brings the adminis-
!ration of justice into ridicule or hampers administration of justice.
After all, it cannot be denied that pre-disposition or subtle prejudice or
unconscious prejudice or what in Indian language is called ''Sanskar'' G
are inarticulate major premises in decision making process. That
--', element in decision making process cannot be denied, it should be taken
note of. [569B-G I

It has to be borne in mind, as has been said by Banjamin N.
Cardozo in "The Nature of the Judicial Process" that the judge as the H
550 SUPREME COURT REPORTS [19881 3 S.C.R.

interpreter for the community of its sense of law and order must supply
A
omissions, correct uncertainties and harmonize results with justice
through a method of free decision. Courts are to "search for light
among the social elements of every kind that are the living· force behind
the facts they deal with". [569G-H; 570AI

B Though at places, intemperate, the statement of the Minister in
this case cannot be said to amount to interference with the administra-
tion of justice and to amount to contempt of court. The Administration
of justice in this country stands on surer foundation. In the speech, it
appears that Shri P. Shiv Shankar was making a study of the attitude of
this Court. It was stated that the Supreme Court was composed of the
element from the elite class. Whether it is factually correct or not is
c another matter. In public life, where the champions of the down-
trodden and the politicians are mostly from the so-called elite class, if
the class composition is analysed, it may reveal interesting factor as to
whether elite class is dominant as the champions' of the oppressed or
of the social legislations and the same is the position in the judiciary.
D But the Minister went on to say that because the Judges had their
'unconcealed sympathy for the haves' they interpreted the expression
'compensation' in the manner they did. The expression 'unconcealed'
was unfortunate. But this was also an expression of opinion about an
institutional pattern. Then, the Minister went on to say that because of ·
this the word 'compensation' in Article 31 was interpreted contrary to
E the spirit and intendment of the Constitution. The Constitution had to be
amended to remove this 'oligarchic' approach of the Supreme Court
with little or no help. The inter-action of the decisions of this Court
and the constitutional amendments had been viewed by the Minister
in his speech, but that was nothing new. This by itself does not affect
the administration of justice. On the other hand, such a study is
F perhaps important for the understanding of the evolution of the
constitutional development. Criticisms of judgments is permissible in a
free society. [573C-D; 575E-H; 576A-B, F]

There was one paragraph which appeared to be rather intem-
perate, it read thus:
G
"Anti-social elements i.e. FERA violators, bride burners and ~
whole hordes of reactionaries have found their heaven in the Supreme
Court". [576F-G]

That, if true, is a criticism of the laws. The Supreme Court, as it is
H bound to do, has implemented the laws and in implementing the laws it
P.N. DUDA v. P.S. SHANKAR 551

is a tribute to the Supreme Court that it has not discriminated between
A
persons and persons. Criminals are entitled to be judged in accordance
with law. If anti-social elements and criminals have benefited by deci-
sions of the Supreme Court, the fault rests with the laws and the
loopholes in the legislation. The Courts are not deterred by such
criticisms. [576G-H]
1 Bearing in mind the trend in the law of contempt as noticed
B

before, as well as in some of the decisions noticed by Krishna Iyer, J. in
the case of Re: S. Mulgaokar, [1978] 3 S.C.R. )62, the speech of the
Minister read in its proper perspective, did not bring the administra·
tion·ofjustice into disrepute or impair administration of justice. In some
portions of the speech, the language used could have been avoided by
the Minister. The Minister perhaps-;,ould have achieved his purpose by C
making his language mild but his facts deadly. With these observations,
it must be held that there was no imminent danger of interference with
the administration of justice, nor of bringing administration ofjustice
into disrepute. In that view, it must be held that the Minister was not
guilty of contempt of Court. [577A·C] D

Another question of law of some importance had arisen in this
matter. Under the Act, in case of criminal contempt other than a
contempt referred to in section 14 which was not this case, namely a
contempt of this Court or a High Court, this Court or the High Court
may take action either on its own motion or on a motion made by the E
Advocate-General, which in relation to_ this Court means the Attorney-
General or the Solicitor-General or any other person with the consent of
the Attorney-General in terms of section 15 of the Act. Cognizance for
criminal contempt could be taken by the Court by three methods;
namely on its own motion, or on the motion of the Attorney-General or
the Solicitor-General,. or on the motion of any other person with the F
consent of the Attorney General. The only course open .to a citizen for
i initiating proceedings for contempt is to move for consent of the
Attorney General or the Solicitor General. _The question is, does it cast
a duty upon the Attorney General or the Solicitor General to consent to
application. for grant of such consent and whether the granting or non-
granting of such consent is justiciable by the Court and if so whether the G
question of non-granting can be brought up in a rolled application
moved by a person to bring it to the notice of the Court to take action
suo motu and at the same time to consider whether in the same proceed-
ings the action of the Attorney General or the Solicitor General in
granting or not granting consent can be challenged or it must be always
by an independent proceeding. The consent certafoly is linked up with H
552 SUPREME COURT REPORTS [1988) 3 S.C.R.
'(

c"ntempt proceedings. In this case, the Minister had taken the plea that
A
consideration of this case could not be takeu up because there was no
consent of the law officers. Did it or did it not tend to interfere with
the due course of judicial proceedings in terms .of clause (ii) of section
J(c) of the Act? The Attorney General and the Solicitor General, in
respect of this Court, occupy positions of great importance and rele-
B vance. The Attorney General is a friend, philosopher, and guide of the ).
Court (Article 76 of the Constitution). Yet, the Act, vests him with
certain discretions. All statutory discretions are justiciable in a society
governed by the rule of law. This Court is the finder and interpreter of
law in cases of this nature with the assistance of Attorney General, and, )I
in his absence or inability, the Solicitor General. [577C-H;'578A-C]
c The petitioner in this case had approached the Attorney General
and the Solicitor General to look into the matter and accord sanction.
The conduct of the respondents Nos. 2 and 3 according to the petitioner,
amounted to refusal to exercise jurisdiction vested in them by law, and,
therefore, they were impleaded as parties in the present proceedings (as
D necessary and1or proper parties) in order that they might get an
opportunity to justify the stand they had taken in the matter flowing
from their refusal to exercise jurisdiction. [580E-G I

The question is whether there is a duty cast upon the Attorney
General or the Solicitor General to consider the question of granting
E consent in terms of clause (b) of section 15(1) of the Act, and if in fact
such consent is not granted, that question can be considered by the
Court. It was not a question of making the Attorney General or the
Solicitor General a party to a contempt proceeding in the sense that
they were liable for contempt, but if the hearing of the contempt
proceedings is better proceeded with by obtaining the consent of the
F Attorney General or the Solicitor General and the question of justicia-
bility of giving the consent is inter-linked on the analogy of Order II,
Rule I o:>f the Code of Civil Procedure, which has application to a civil
,
,-.,
proceeding and not to a criminal proceeding, it is permissible to go
into this question. In the case of Conscientious Group v. Mohammed
Yunus and others, [1987] 3 S.C.C. 89, this Court went into the reasons
G given by the Solicitor General declining consent, and held on examina-
tion that such consent was properly refused. This is a complete answer
to the contention that in a contempt petition the grounds for either
giving consent or not giving consent or for not considering the applica-
tion for consent are justiciable and that question cannot be gone into in
that proceeding though it must be emphasised in that proceeding that
H the Solicitor General was not made a party to the proceeding. In his
PX DUDA v. P.S. SHANKAR 553

Lordship's opinion, it will be more .appropriate for an officer of the
A
Court ·whose action is being investigated to he made a party in the
proceedings, otherwise it would be violative of the·rule of audi a/teram
partem. Discretion vested in the law officers of this Court to be used for
a public purpose in a society governed by rule of law is justiciable. It
would be more appropriate that it should be gone into upon notice to the
J. law officer concerned. It is a case·where appropriate ground for refusal B
to act can be looked into by the Court. It cannot be said that the refusal
to grant consent decides no right and it is not reviewable. Refusal to
give consent closes one channel of initiation of contempt out of the three
different channels, namely, (1) the Court taking cognizance on its own
motion; (2) on the motion by the Attorney General or the Solicitor
General; and (3) by any other person with the consent in writing of the
Attorney General or the Solicitor General. In this case, apparently the c
Attorney General and the Solicitor General had not moved on their
own. The petitioner could not move in accordance with law without the
consent of the Attorney General and the Solicitor General, though he
has a right to move and the third is the Court taking notice suo motu.
Bnt irrespective of that there was the right granted to the citizen of the D
country to move a motion with the consent. Indubitably, cognizance
could be taken suo motu by the Court but the members of the public
have also the right to move the Court. That right of bringing to the
notice of the Court is dependent upon consent being given either by the
Attorney General or the Solicitor General, and if that consent is with-
held without reasons or without consideration of that right granted to E
any other person under section 15 of the Act, that could be investigated
in an application made to the Court. [58JB-H; 582A-C; 584C-D]

Where an.appeal comes to this Court, which is a judicial decision,
the judges who rendered the decision are not necessary parties. There is
no tis between a suitor .and a judge in a judicial adjudication. But the F
position is entirely different where there is a suitor claiming the exercise
of a statutory right in his favour which he alleges is hampered by an
official act of a named official in the Act. In respect of justiciability of
;
that act of the official there is a lis and if that tis is inter-linked with
the proceeding for contempt, there is warrant for making him party
in that proceeding though the prayers and the notice must be issued G
differently. The statute gives a right to a suitor to move the Court in one
of the contingencies for contempt or bring to the notice of the Court the
contempt with the advice and assistance of the Attorney General or the
Solicitor General. If such right is not considered on relevant materials,
then, that action is justiciable in the appropriate proceeding for
contempt. [585C-G I H
554 SUPREME COURT REPORTS [!988] 3 S.C.R.
'(
Having considered the peculiar facts and circumstances of this
A
case and the allegations of bias made against the Attorney general and
the Solicitor General, it appeared that the Attorney General and the
Solicitor General acted properly in declining to deal with the matter
and the Court could deal with the matter on attention being drawn to
this Court. In that view of the matter, the petition failed and the appli·
B cation ofShri Trivedi was accordingly disposed of. [588D·El )_
Per S. Ranganathan, J. (Concurring)

The impugned comments were made by the respondent No. l in ).J -
the course of his key note address at a seminar on 'Accountability of the
Legislature, Executive and Judiciary under the Constitution of India'.
'
c The speech, and, in particular, some 'sevoury' passages therefrom were ¥
highlighted in the Press. The speech had been made before an audience
comprising essentially lawyers, Jurists and Judges. It represented
primarily an exercise by the speaker to evaluate the roles of the execu·
live, legislature and judiciary in the country since its independence and
D to put forward the theory that, like the executive and the legislature, the
judiciary must also be accountable to the people. [SSSF-H; 589A]

The petitioner contended that certain passages in the speech
seemed to attribute a sub-conscious partiality, bias or predeliction in ,,._
the Judges in disposing of various matters before them and that those
E comments fell within the scope of the decision of this Court in the case
of E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, [1970] 2
sec 325. 1ss9A·Bl
~

It was true, as pointed out by Sabyasachi Mukharji, J. that there
were passages in the speech which torn out of context might be liable to -l'/
F be misunderstood, but reading the speech as a whole and bearing in I
mind the select audience to which it was addressed, his Lordship agreed
with Sabyasachi Mukharji, J., that no contempt had been committed.
The affidavit of the respondent No. l should be accepted at its face
value that the speech was only a theoretical dissertation and that he '
intended no disrespect to this Court or its functioning. [589D·El
G
The second aspect of the case on which arguments were addressed
before the Court, related to the procedure to be followed in such mat· /.-
ters. This aspect raised some important issues. [589E·FI
'
The criminal miscellaneous petition ftled by the petitioner
H
.
purported to be only "information" u/s 15 (l)(a) and (b) of the
P.N. DUDA v. P.S. SHANKAR 555
• Contempt of Courts Act, 1971 ('the Act'). The petitioner stated that
.A
he came to know Crom a report in the newspaper that the respondent
No. 1, in the course or his speech, had made certain statements which
randered him liable to be proceeded against for contempt or court, aud,
appending what was stated to be a Cull text or the said speech published
in the "Newstime", prayed for initiation or contempt or court proceed-
J . ings suo motu under s. 15(1) of the Contempt of Courts Act, 1971, read B
with nile 3(a) or the Supreme Court (Contempt or Court) Rules, 1975.
Though the respondent No. 1 only, according to the petitioner, was to
·be charged with contempt, the petitioner had added three more respon-.

~
dents to the criminal miscellaneous petition, namely, the Attorney
General for India (by name), the Solicitor General or India (by name)
and Sri Ramji Rao, Editor or "Newstime". The petition raised certain
~ questions or general importance for consideration to evolve a proper c
procedure for future guidance in these matters. [589F-H; 590A-B I

The petitioner sought to charge respondent No. 1 with "Criminal
Contempt" under Section 15 of the Contempt or Courts Act, 1971.
D
A conjoint perusal or the Act and the rules or the Supreme Court
to regulate proceedings for Contempt or Supreme Court makes it clear
that so Car as this Court is concerned, action for contempt may be taken
by the Court on its own motion or on the motion or the Attorney
--\ General (or the Solicitor General) or or any other person with his con-
sent in writing. There is no difficulty where the Court or the Attorney E
General chooses to move in the matter. When a private person desires.
that such action should be taken, he may place the inCormation in his
r possession before the Court, requesting the Court to take action; or he
may place the information before the Attorney General requesting him
~- to take action; or he may place the information before the Attorney
General requesting him to permit him to move the Court. In this case, F
the petitioner alleged that he had failed in the letter two courses, and he
had moved this 'petition' praying that this Court should take suo motu
action. On this 'petition', no proceedings could commence until and
" uuless the Court considered the information before it and decided to
initiate proceedings. [592F-H; 593A-B]
G
The Corm or a criminal miscellaneous petition styling the infor-
mant as the petitioner and certain persons as respondents is inappro-
priate for merely lodging the relevant information before the Court
under rule 3(a) or the Supreme Court (Contempt of Court) Rules. The
proper title or such a proceeding should be "ID re • ; ••••••• (the
alleged conte~pt)". The direction given by the Delhi Hii:h Court in H
\
556 SUPREME COURT REPORTS [1988) 3 S.C.R.

A nil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1 that" ••••••••
A
if any information is lodged even in the form or a petition inviting
this Conrt to take action u/s 15 orthe Contempt or Courts Act or Article
--_212 of the Constitution, where the informant is not one of the pei:c.ons
named in section 15 of the said Act, it should not be styled as a petition
and should not be placed before the judicial side. Such a petition should
B be placed before the Chief Justice for orders in chambers and the Chief
Justice may decide either by himself or in consultation with the other
judges of the Court whether to take any cognizance of the information
•••••••• " sets out the proper procedure in such cases and may be
· adopted in future as a practice direction or as a rule, by this Court and
the High Court. However, this petition having been f"Iled and similar
-- petitions having been perhaps entertained earlier in several courts, his
C Lordship did not suggest that this petition should be dismissed on this
ground. [593C-H; 594A-B)

' In this case, apart from filing his information in the form of a peti-
tion, the petitioner had added as respondents to the petition not only the
D · alleged contemner but three more persons i.e. the Attorney General,
the Solicitor General and Shri Ramoji Rao, Editor of "Newstime". The
Attorney General and Solicitor General were stated to be impleaded in
order that they might get an opportunity to justify their stand in refus-
ing to exercise their jurisdiction to grant consent to him to enable him to
file a petition under section 15(1) read with rule 3(c), and the fourth
E respondent was only a possible witness, stated to be impleaded only to
prove the authenticity of the speech reported in the ''Newstime'' in the
event of a disclaimer of the respondent No. 1. This could not be done.
This petition, as filed, was for initiating proceeding for contempt only

"---
against respondent No. -1. If the petitioner had any cause of action
against the other persons, such persons were neither necessary nor even
F- _proper parties to this petition, because such cause of action was of a
+
purely civil nature. At best, the petitioner could say that_ he was entitled
_ to a writ of mandamus directing the Attorney General and Solicitor
- General to discharge their statutory obligation or a writ of certiorari to
quash their decision in case they hadr"nreasonably withheld their con-
sent to the petitioner's filing a petition. This remedy was to be sought
-G independently against these persons by a separate writ petition. He
could not seek relief against the Attorney General and the Solicitor y-
·------. · General by a petition mixing up his criminal charge against respondent
No. 1 and his civil grievance against the Attorney General and the
Solicitor General. He could not get over the objection to the maintaina-
bility of a petition, i.e. want of consent of the Attorney General or the
H Solicitor General, merely by the device of adding them as respondents
P.N. DUDA v. P.S. SHANKAR 557

to the petition; no relief was sought against the Attorney or the Solicitor
General. This petition, if treated as one under rule 3(c) was not main- A
tainable for want of consent by the Attorney General and the Solicitor
General and had to be dismissed as such. The inclusion of respondents 2
to 4 as respondents to the petition was totally unjustified, and if the
petition was to be taken as merely laying of information under rule 3(a),
.1 the names of respondents 2 to 4 must be struck off from the array of B
parties. His Lordship directed accordingly. Notice of the petition should
not have been issued in the form it was issued, to the Attorney General
and the Solicitor General since there was no allegation of contempt and
-'r. no relief had neen1IDught against them. [594B-H; 595A-DI

The petitioner had submitted that the Attorney General and the
Solicitor General had acted unreasonably in declining to act in this case. C
In addition to merely placing the information with him before the
Attorney General/Solicitor General and seekidg their consent to his
filing a petition before the Court, he had written a letter containing a
lot of irrelevant matter, whereby while purporting to seek the consent
of the Attorney General/Solicitor General, he had simultaneously D
expressed his lack of confidence in their judgment and ability to
discharge their duties objectively and impartially. In this situation, the
Attorney General/Solicitor General decided not to exercise their statu-
tory powers at all one way or the oth.;r. the Attorney General/Solicitor
General acted rightly and in the best traditions of their office by
declining to deal with the petitioner's request. The petitioner had cast E
aspersions against both the law officers, doubting their ability to act
objectively and this stultified by his conduct this course indicated by the
Statute. [S98G-H; 599A-C, Fl

As to the question whether, in a case where neither the Attorney '
General nor the Solicitor General was in a position to consider a request F
under section IS(l)(c), the petitio:mer could seek the consent of some
other law officers, as the Additional Solicitor General, it was not
open to him to seek such consent, as under sec"tion IS, the written
consent of only those officers as have been specifically authorised by the
section would be taken note of for entertaining a petition under the
section. [S99G-H; 600A-BI G

Summing up the conclusions-

(a) This petition, if treated as and filed under section 15(1) read
with rule J(a) was not in proper form, and if treated as one filed under
rules 3(b) and 3(c), was not maintainable as it was not filed by the H
558 SUPREME COURT REPORTS [1988] 3 S.C.R.

Attorney General;Solicitor General or any other person with his
A
consent; [600C]

(b) In either event, the petitioner should not have added to the
petition respondents other than the person, alleged to be guilty of
Contempt of Court, and their names should be deleted from the array of
B the parties; I600D I

(c) In case the Attorney General/Solicitor General refuse consent
or decline to act, their decision is not judicially reviewable and a peti-
•
tioner's remedy is to approach the Court for action under rule 3(a); [600EJ -1
(d) In this case, the Attorney General/Solicitor General acted
c properly in declining to deal with the petitioner's application either
way, and [600F]

(e) This petition was nothing more than information under rule
l(a) on which this Court might or might not take suo motu action and
D there was no need to initiate proceedings against the respondent No. l
for Contempt of Court. [600F-G]

Ambard v. Attorney General for Trinidad and Tobago, [1936]
A.C. 322, 325; E.M. Sankaran Namboodiripad v. T. Narayanan
Nambiar, [1971] 1 SCR 697-(1970) 2 SCC 325; Joseph Loohner v.
E People of the State of New York, 49 Lawyers' Edition 195-198 U.S.
1904; Re: Shri S. Mulgaokar, [1978] SCR 162; New York Times
Company v. L.B. Sullivan, 376 U.S. i54; Regina v. Commissioner of
Police of the Metropolis, Ex Parte Blackburn, [1968] 2 W.L.R. 1204;
Special Reference No. I of 1964, [196511 S.C.R. 413; Shri Baradakanta
Mishra v. The Registrar of O:issa High Court and another, [1974] I
F SCC 374; Ram Dayal Markarha v. State of Madhya Pradesh, [1978] 3
SCR 497; Conscientious Group v. Mohammed Yunus and others,
I 1987] 3 SCC 89 J. T. 1987 (2) 377; National Anthem case, [1986] 3 SCC
615; Vassiliades v. Vassiliades and others, AIR 1945 P.C. 38; S.K.
Sarkar v. V.C. Misra, [1981] 2 SCR 331; C.K. Daphtary and others v.
O.P. Gupta, and another, [1971] Suppl. S.C.R. 76; G.N. Verma v.
G- Hargovind Dayal and others, AIR 1975 Allahabad 52; B.K. Kar v. The
Chief Justice and his Companion Judges of the Orissa High Court and
-
Others, "19621 1 SCR 319; Attorney General v. Times Newspapers Ltd.,
[1973] 3 All. E.R. 54; Indian Express Newspapers (Bombay) Pvt. Ltd.
and Others etc. v. Union of India & Others, [1985] 1 SCC 641; Gouriet
and others v. H.M. Attorney General, [1978] Appeal Cases 435;
H Gouriet v. Union of Post Office Workers, [1978] Appeal cases 435;
P.N. DUDA v. P.S. SHANKAR. [MUKHARJI, J.J 559

Gouriet v. Union of Post Offices Workers & Ors., [1977] l Q.B. 729 to A
752; Rajagopal v. Murtza Mutjahdi, [1974] l Andhra Law Times 170;
N. Venkataramanappa v. D.K. Naikar, A.I.R. 1978 Karnataka 57;
Anil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1 and A.G. v.
Times Newspapers, [1974] AC 277, referred to.

CRIMINAL ORIGINAL JURISDICTION: Criminal Miscella· B
1 neous Petition No. 260 Of 1988.

Under Section 15(l)(a) and (b) of the Contempt of Courts Act,
1971 read with its explanation (1) and Rule (3)(a), (b) and (c) of
Contempt of Supreme Court Rules, 1965.
c
"¥ Randhir Jain for the Petitioner.
B. Datta, Additional. Solicitor General, Dr. Y.S. Chitale, A.K.
Ganguli, N. Nettar, G.S. Narayan, Gopal Subramanian, Mukul Mudgal,
P.H. Parekh, San jay Bharthari and R.K. Joshi for the Respondents.
D
The following Judgments of the Court were delivered:

SABYASACHI MUKHARJI, J. By an order dated 15th March,
1988 we declined in this matter to initiate contempt proceedings under
section 15(1) (a) and (b) of the Contempt of Courts Act, 1971
(hereinafter called 'the Act') read with rule 3(a), (b) and (c) of the
Supreme Court Contempt of Court Rules, 1975. We also on that date E
disposed of the application for intervention filed by Shri R.N. Trivedi.
We stated that we will indicate our reasons by a separate judgment.
We do so herein.

Shri P. Shiv Shankar who at the relevant time was the Hon'ble
Minister for Law, Justice and Company Affairs delivered a speech F
before a meeting of the Bar Council of Hyderabad on 28th November,
1987. Shri P.N. Duda, who is an advocate practising in the Supreme
Court, has drawn our attention to that speech. According to him, by
that speech respondent No. l, Shri P. Shiv Shankar has made state-
ments against the Supreme Court which are derogatory to the dignity
of this Court, attributing this Court with partiality towards economi- G
cally affluent sections of the people and has used language which is
extremely intemperate, undignified, and unbecoming of a person of
his stature and position. It was stated that Shri P. Shiv Shankar
formerly held the office of a Judge of the High Court before ,he
resigned and took to politics.
H
560 SUPREME COURT REPORTS [1988] 3 S.C.R.
y·
A We have read the entire speech. It is not necessary to set out the
entire speech. The relevant portions of the said speech for the present
purpose are as follows:

"(a) The Supreme Court composed of the element from
the elite class had their unconcealed sympathy for the
B haves i.e. the Zamindars. As a result, they interpreted the
word 'compensation' in Article 31 contrary to the spirit and
the intendment of the Constitution and ruled the compen-
sation. must represent the price which a willing seller is
prepared to accept from a willing buyer. The entire prog-
ramme of Zamindari abolition suffered a setback. The ~\.
Constitutioli had to be amended by the 1st, 14th and 17th
c Amendments to remove this oligarchic approach of the
Supreme Court with little or no help. Ultimately, this rigid
reactionary and traditional outlook of property, led to the
abolition of property as a fundamental right."

O He inter alia further observed:

"(b) Holmes Alexander in his column entitled '9 Men of
Terror Squad' made a frontal attack on the functions of the
U.S. Supreme Court. It makes an interesting reading:

E 'Now can you tell what that black-robed elite are
going to do next. Spring more criminals, abolish more
protections. Throw down more ultras. Rewrite more
laws. Chew more clauses out of the Constitution.
..,
May be, as a former Vice-President once said, the
American people are too dumb to understand, but I
F would bet that the outcropping of evidence at the top
in testimony before the US Senate says· something
about the swelling concern among the people them-
selves.' ,

Should we not ask how true Holmes Alexander was in
G the Indian context."

The Minister further stated:

"(c) Twenty years of valuable time was lost in this confron-
tation presented by the Judiciary in introducing and imple-
H menting basic agrarian reforms for removal of poverty
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.] 561

what is the ultimate result. Meanwhile even the political
A
will seems to have given way and the resultant effect is the
unproper and ineffective implementation of the land
reform laws by the Executive and the Judiciary suppliment·
ing and complementing each other."

1 It was further stated by him: B

"(d) The Maharajas and the Rajas were anachronistic in
- independent India. They had to be removed and yet the
conservative element in the ruling party gave them privy
purses. When the privy purses were abolished, the
Supreme Court, contrary to the whole national upsurge,
held in favour of the Maharajas". c
"(e) Madhadhipatis like Keshavananda and Zamindars
like Golaknath evoked a sympathetic cord nowhere in the
whole country except the Supreme Court of India. And the
bank magnates, the representatives of the elitist culture of D
this country, ably supported by industrialists, the bene·
ficiaries of independence, got higher compensation by the
intervention of the Supreme Court in Cooper's case. Anti·
social elements i.e. FERA violators, bride burners and a
whole horde of reactionaries have found their heaven in the
Supreme Court." E

Shri P.N. Duda brought the newspaper version of the said speech
to our notice. He further stated that the said speech contains slander
which was cast on this Court, both in respect of the Judges and its
working. It was alleged that Shri P. Shiv Shankar has done this to
malign this Court. Shri Duda further stated that he read the speech in F
the News Times and he had approached the learned Attorney General
of India and the learned ,Solicitor General of India to give their
consent for initiating contempt proceedings. In those circumstances,
the petitioner claimed that he also made the Editor and Publisher of
the newspaper- News Times as one of the respondents. The learned
Attorney General and the learned Solicitor General have declirled to G
deal with this prayer of the petitioner for the reasons stated in the
letter which is an annexureto this petition. We shall refer to that part
of the letter later. In those circumstances an application for initiation
of contempt entitled "Information under Section 15(1)(a) and (b) of
the Act read with Explanation (19 and Rule 3(a), (b) and (c) of
Contempt of Supreme Court Rules, 1975" in the matter of said Shri H
562 SUPREME COURT REPORTS [1988] 3 S.C.R.

P.N. Duda was made wherein Shri P. Shiv Shankar, the learned
A Attorney General, the learned Solicitor General and the Editor of
News Times were made parties. The application having been moved
before this Court on 10th February, 1988 we directed issue of notice
returnable on 15th March, 1988 to the respondents, namely, Shri P.
Shiv Shankar, Shri K. Parasaran, Shri Milon Banerji and Shri Ramji
B Rao, Editor, News Times confined only to the question to consider
whether action, if any, need be taken on the said petition of the
petitioner. We requested the First Additional Solicitor General, Shri
B. Datta to appear as Amicus Curiae to assist the Court. On 11th
February, 1988 Shri Duda mentioned the matter and this Court
clarified that the respondents need not appear in the first instance in
~I
-
person. In the meantime, pursuant to the notice Shri P. Shiv Shankar
C has filed an affidavit on 8th March, 1988 in which he has stated that he
had delivered a speech on the Silver Jubilee Celebration of the Bar
Council of Andbra Pradesh at Hyderabad where the audience con-
sisted of Judges and lawyers. On that occasion he had made a speech
on the subject of accountability of the Legislature, the Executive and
o the Judiciary. He further stated that during the speech, he made
comments on the accountability of the three organs and theoretical
implications thereof. The Minister has further reiterated with utmost
emphasis at his command that be intended no disrespect to any of the
institutions or its functionaries much less this Hon'ble Court. He
further stated that he has high regard for this Hon 'ble Court. He
E further stated that the contempt petition is not maintainable in law
without the consent of the Attorney General or the Solicitor General
and it was liable to be dismissed. In the Meantime an application has
been filed by Sbri R.N. Trivedi who is an advocate of 25 years' stand-
ing at the Bar in which be has claimed the right to be impleaded as a
party. He has stated in the petition that the learned Attorney General
F and the Solicitor General should not have been made parties to the
contempt petition and the alleged non-exercise of jurisdiction by the
Attorney General and the Solicitor General did not constitute con-
tempt within the meaning of section 2( c) of the Act. The remedy, if
any, in respect of the alleged non-exercise of jurisdiction and power
would lie somewhere else, according to Shri Trivedi. Shri B. Datta at
G our request appeared as Amicus Curiae and made his submissions. We
express our gratitude to him.

Before deciding the question whether this application was main-
tainable without the consent of the Attorney General or the Solicitor
General as contended by Dr. Chitale on behalf of Shri Shiv Shanker
H and the question whether the Attorney General and the Solicitor
,

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.] 563

General could be made parties to the contempt application and A
whether their action or inaction was justiciable at all in any proceeding
and if so in what proceedings, it is necessary to decide the basic ques-
tion whether the speech made by Shri P. Shiv Shankar and published
throughout the length and breadth of the country amounted to con-
tempt of this Court, or in other words, whether the speech has the
l effect of bringing this Court into disrepute. B

"Justice is not a cloistered virtue. she must be allowed to suffer
- \,,:. the scrutiny and respectful, even though outspoken, comments of
, '. ordinary men."-said Lord Atkin in Ambard v. Attorney-General for
Trinidad and Tobago, [1936] A.C. 322 at 335. Administration of
~ justice and Judges are open to public criticism and public scrutiny.
c
Judges have their accountability to the society and their accountability
must be judged by their conscience and oath of their office, that is, to
defend and uphold the Constitution and the laws without fear and
favour. This the Judges must do in the light given to them to determine
what is right. And again as has been said in the famous speech of
Abraham Lincoln in 1865 "With malice towards none, with charity for D
all, we must strive to do the right, in the light given.to us to determine
that right." Any criticism about the judicial system or the Judges
which hampers the administration of justice or which erodes the faith
~ in the objective approach of Judges and brings administration of
justice into ridicule must be prevented. The Contempt of Court pro-
ceedings arise out of that attempt. Judgment can be criticised; the E
motives of the Judges need not be attributed, it brings the administra-
tion of justice into deep disrepute. Faith in the administration of
justice is one of the pillars through which democratic institution func-
'----~' tion~ a~d. sustains. In the free market place of ideas criticisms about
:r the 1ud1c1al system or Judges should be welcomed, so long as such
criticisms do not impair or hamper the administration of justice. This is F
how Courts should approach the powers vested in them as Judges to
punish a person for an alleged contempt,' be it by taking notice of the
matter suo motu or at the behest of the litigant or a lawyer. ·

In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar,
[1971] 1 S.C.R. 697, this Court had to deal with this jurisdiction in G
~. respect of Mr. Namboodiripad who at the relevant time was the Chief
Minister of Kerala. He had held a press conference in November, 1976
and made various critical remarks relating to the judiciary which.inter
alia was described by him as "an instrument of oppression" and the
Judges as "dominated by class hatred, class prejudices", "instincti-
~ vely" favouring the rich against the poor. He also stated that as part of H
- -- - - - - - -------------~---- -- ---~

564 SUPREME COURT REPORTS [1988] 3 S.C.R.

A the ruling classes the judiciary "works against workers, peasants and
other sections of the working classes" and "the law and the sy-.tem of
judiciary essentially served the exploiting classes" (emp!·.1•'s ' .. ~'. 'ied)
It was found that these remarks were reported in ;he newspapers and
thereafter proceedings commenced in the High Court of Kerala. The
appellant Shri Namboodiripad was called upon to show cause why he
B should not be committed for contempt. In his affidavit the appellant
stated that the reports were "substantially correct'', though incomp-
lete in some respects. The appellant further claimed that his observa-
tions did no more than give expression to the Marxist Philosophy and
what was contairied in the programme of the Communist Party of
India. By a majority judgment of the High Court the appellant was
C convicted for contempt of court and fined Rs.1000 or simple imprison- ~
ment for one month. He moved this Court by an appeal. He contended
_that the law of contempt must be read without encroaching upon the
guarantee of freedom of speech and expression under Article 19(1)(a)
of the Constitution and that the intention of the appellant in making
his remarks at the press conference should be examined in the light of
D his political views which he was at liberty to put before the people. He
sought to justify the remarks as an exposition of his ideology which he
claimed was based on the teachigs of Marx and Engels and on this
ground claimed protection of the first clause of Article 19(1) of the
Constitution. 1be conviction of the appellant was upheld by this
Court. It was observed by Hidayatullah, C.J. _speaking for the Court
E that the law punishes not only acts which do not in fact interfere with
the courts and administration of justice but also those which have that
tendency, -that is to say, are likely to produce a particular result.
Judged from the angle of courts and administration of justice, there
was no doubt that the appellant was guilty of contempt of court. The
Chief Justice observed whether the appellant misunderstood the
F teachings of Marx and Engels or deliberately distorted them was not to
·+
mush purpose. The likely effect of his words must be seen and they
clearly had.the effect of lowering the prestige ofjudges and courts in the
eyes of the people. (emphasis supplied) That he did not intend any such
result may be a matter for consideration in the sentence to be imposed
on him but could not serve as a justification. This Court further held
G that the appellant had misguided himself about the true teachings of
Marx, Engles and Lenin. According to the Chief Justice he had misun- r
derstood the attack by them on State and the laws as involving an
attack on the Judiciary. No doubt the courts, while upholding the laws
and_ enforcing them, do give support to the State but they do not do so
'out of any impure motives. To charge the Judiciary as an instrumeni of
H oppression, the Judges as guided and dominated by class hatred, class
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 565

interests and class prejudices, instinctively favouring the rich against the
A
poor is to draw a very distorted and poor picture of the Judiciary. It
was clear that the appellant bore an attack upon judges which was
calculated to raise in the minds of the people a general dissatisfaction
with and distrust of all judicial decisions. According to the Chief
Justice it weakened the authority of law and law courts (emphasis
,J supplied). It was further held that while the spirit underlying Article B
19(1)(a), must have due play, the Court could nor overlook the provi-
sions of the second clause of that Article. Its provisions are to be read
with Articles 129 and 215 which specially confer on this Court and the
High Courts the power to punish for contempt of themselves.
Although Article 19(1)(a) guaranteed complete freedom of speech and
expression, it also made an exception in respect of contempt of court.
"' While the right is essential to a free society, the Constitution had itself
c
imposed restrictions in relation to contempt of court and it could not
therefore be said that the right abolished the law of contempt or that
attack upon judges and courts would be condoned. We are not con-
cerned here whether the appellant in that case properly understood
the communist manifesto or the views of the Marx, Engles and Lenin. D
While respectfully accepting the ratio and the observations of the
learned Chief Justice made in that decision we must recognise that
times and clime have changed in the last two decades. There have been
tremendous erosions of many values. In this connection it is interesting
to note that little over sixty years ago, on 1st March, 1928, Justice
Holmes wrote to Prof. Harold Laski " ... You amaze me by saying, if I E
understand you, that criticism of an opinion or judgment after it has

- been rendered, may make a man liable for contempt. I thought that
notion was left for some of our middle western states. I must try to get
the book and the decision .......... "(Holmes-Laski Letters Vol. 1
1916-1925 Page 1032).
F
In the instant case we have examined the entire speech. In the
speech Shri P. Shiv Shankar has examined the class composition of the
Supreme Court. His view was that the class composition of any instru-
ment indicates its pre-disposition, its prejudices. This is inevitable.
Justice Holmes in his dissenting opinion in Joseph Lochner v. People
of the State of New York, 49 Lawyers' Edition 195-198 U.S. 1904 had G
observed "General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle than any
articulate major premise." That intuition more subtle than major
premise is the pride and the prejudice of a human instrument of a
Judge through which objectively the Judge seeks to administer justice
according to law. So, therefore, in a study of accountability if class H
566 SUPREME COURT REPORTS [19881 3 S.C.R.

composition of the people manning the institution is analysed we
A forewarn ourselves of certain inclination it cannot be said that an ,
expression or view or propagation of that view hampers the dignity of r
the Courts or impairs the administration of justice.

The question of contempt of court by newspaper article criticis-
B ing the Judges of the Court came up for consideration in the case of ,\.._
Re: Shri S. Mulgaokar, [1978] 3 S.C.R. 162. In order to appreciate the
controversy in this case it has to be stated that the issue dated 13th •
December, 1977, of the Indian Express published a news item that the
High Courts had reacted very strongly to the suggestion of introducing
a code of judicial ethics and propriety and that "so adverse has been
-
the criticism that the Supreme Court Judges, some of whom had pre-
c pared the draft code, have disowned it". In its issue dated December -.+
21, 1977 an article entitled "behaving like a Judge" was published
which inter alia stated that the Supreme Court of India was "packed" by
Mrs. Indira Gandhi "with pliant and submissive judges except for a
few". It was further stated that the suggestion that a code of ethics
D should be formulated by Judges themselves was "so utterly inimical to
the independence of the judiciary, violative of the Constitutional safe-
guards in that respect and offensive to the self-respect of the Judges as
to make one wonder how it was conceived in the first place". A notice
had been issued to the Editor-in-Chief of the Newspaper to show-
cause why proceedings for contempt under Article 129 of the Constitu-
E tion should not be initiated against him in respect of the above two
news items.

It was observed by Chief Justice Beg in that decision that
national interest required that all criticisns of the judiciary must be
strictly rational and sober and proceed from the highest motives with-
F out being coloured by any partisan spirit or tactics. This should be a
part of national ethics. The comments about Judges of the Supreme
Court suggesting that they lack moral courage to the extent of having
"disowned" what they had done or in other words, to the extent of
uttering what was untrue, at least verge on contempt. None could say
that such suggestions would not make Judges of this Court look
G ridiculous or even unworthy, in the estimation of the public, of the
very high office they hold if they could so easily "disown" what they
had done after having really done it. It was reiterated that the judiciary
can not be immune from criticism. But, when that criticism was based
on obvious distortion or gross mis-statement and made in a mann\)r
which seems designed to lower respect for the judiciary and destroy
H public confidence in it, it could not be ignored. A decision on the
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 567

question whether the discretion to take action· for Contempt of Court
A
should be exercised must depend on the totality of facts and circum-
stances of the case. The Chief Justice agreed with the other two
learned Judges in that decision that in those facts the proceedings
should be dropped. Krishna Iyer, J. in his judgment observed that the
Court should act with seriousness and severity where justice is
jeopardised by a gross and/or unfounded attack on the Judges, where B
the attack was calculated to obstruct or destroy the judicial process.
The Court must harmonise the constitutional values of free criticism,
and the need for a fearless curial process and its presiding functionary,
the judge. To criticise a judge fairly albeit fiercely, is no crime but a
necessary right. Where freedom of expression subserves public
interest in reasonable measure, public justice cannot gag it or
manacle it. The Court must avoid confusion between personal protec- c
tion of a libelled judge and prevention of obstruction of public justice
and the community's confidence in that great process. The former is
not contempt but latter is, although overlapping spaces abound. The
fourth functional canon is that the Fourth Estate should be given free
play within responsible limits even when the focus of its critical atten- D
tion is the court, including the highest court. The fifth normative
guideline for the Judges to observe is not to be hypersensitive even
where distortions and criticisms overstep the limits, but to deflate
vulgar denunciation by dignified bearing, and the sixth consideration is
that if the Court considers the attack on the judge or judges scurril-
ous, offensive, intimidatory or malicious beyond condonable limits, E
the strong arm of the law must strike a blow on him who challenges the
supremacy of the rule of law by fouling its sources and stream.

It is well to remember the observations of Justice Brennan of
U.S. Supreme Court (though made in the context of law of libel) in
New York Times Company v. L.B. Sullivan, 376 U.S. 254 that it is a F
prized privilege to speak one's mind, although not always with perfect
good taste, on all public institutions and this opportunity should be
afforded for vigorous advocacy no less than abstract discussion.

Lord Denning in Regina v. Commissioner of Police of the
Metropolis, Ex parte Blackburn, [19681 2 W.L.R. 1204 observed as G
follows.

"Let me say at once that we will never use this jurisdiction
as a means to uphold our own dignity. That must rest on
surer foundations. Nor will we use it to suppress those who
speak against us. We do not fear criticism, nor do we resent H
568 SUPREME COURT REPORTS [1988] 3 S.C.R.

it. For there is something far more important at stake. It is
A
no less than freedom of speech itself..

It is the right of evety man, in Parliament or out of it, i:1 '.he
Press or over the broadcast, to make fair co=ent, even
'; ' outspoken co=ent on matters of public interest. Those
B who co=ent can deal faithfully with all that is done in a
court of justice. They can say that we are mistaken, and our
decisions erroneous, whether they are subject to appeal or
not. All we would ask is that those who criticise us will
remember that, from the nature of our office, we cannot
reply to their criticisms. We cannot enter into public con-
troversy. Still less into political controversy. We must rely
c· on our conduct itself to be its own vindication. ·· •

Exposed as we are to the winds of criticism, nothing which
is said by this person or that, nothing which is written by
this pen or that, will deter us from doing what we believe is
D ( right; nor, I would add, from saying what the occasion
' requires, provided that it is pertinent to the matter in hand.
Silence is not an option when things are ill done."

The aforesaid observations were made in respect of an article
written by Mr. Quintin Hogg in "Punch" (as later Lord Hailsham then
E was) more or less in a critical language as the Hon'ble Minister's
speech in the instant case.

Gajendragadkar, C.J. in Special Reference No. 1of1964, [1965]
1 SCR 413 observed as follows:

F "We ought never to forget that the power to punish
for contempt, large as it is, must always be exercised cauti~ ·
+
ously, wisely and with circumspection. Frequent or indis-
criminate use of this power in anger or irritation would not
help to sustain the dignity or status of the court, but may
sometimes affect it adversely. Wise Judges never forget
G that the best way to sustain the dignity and status of their
office is to deserve respect from the public at large by the
·quality of their judgments, the fearlessness, fairness and r
objectivity of their. approach,· and by the restraint, dignity
and decorum which they observe in their judicial conduct."

H It has been Well said that if judges decay, the contempt power
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.I 569

will not save them and so the other side of the coin is that Judges, like
A
Caesar's wife, must be above suspicion, per Krishna Iyer, J. in Shri
Baradakanta Mishra v. The Registrar of Orissa High Court and
another, [1974] 1 S.C.C. 374. It has to be admitted frankly and fairly
that there has been erosion of faith in the dignity of the court and in
the majesty of law and that has been caused not· so much ·by the
), scandalising remarks made by politicians or ministers but the inability B
of the courts of law to deliver quick and substantial justice to the
needy. Many today suffer from remedy less evils which courts·. of
justice are incompetent to deal with. Justice cries in silence for long,
far too long. The procedural wrangle is eroding the faith in our justice
system. It is a criticism which the Judges and lawyers must make about
themselves. We must tum the search light inward. At the same time
we cannot be oblivious of the attempts made to decry or denigrate the
c
judicial process, if it is seriously done. This question was examined in
Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R.
497 where it was held that fair and reasonable. criticism of a judgment
which is a public document or which is a public act of a Judge con-
cerned with administration of justice would not constitute contempt. D
In fact such fair and reasonable criticism must be encouraged because
after all no one, much less Judges, can claim infallibility. Such a criti-
cism may fairly assert that the judgment is incorrect or an error has
been committed both with regard to law or established facts. But
when it is said that the Judges had a pre-disposition to convict or
deliberately took a turn in discussion of evidence because he had al- E
ready made up his mind to convict the accused, or has a wayward bend
of mind, is attributing motives, lack of dispassionate and objective
approach and analysis and pre-judging of the issues which would bring
administration of justice into ridicule. Criticism of the Judges would
attract greater attention than others and such criticism sometime
interferes with the administration of justice and that must be judged by F
the yardstick whether it brings the administration of justice into a
ridicule or hampers administration of justice. After all it cannot be
denied that pre-disposition or subtle prejudice or unconscious
prejudice or what in Indian language is called "Sanskar" are inarticu-
late major premises in decision making process. That element in the
decision making process cannot be denied, it should be taken note of. G

It has to be borne in mind, as has been said by Benjamin N.
Cardozo in "The Nature of the Judicial Process" at pages 16-17 that the
Judge as the interpreter for the community of its sense of law and
order must supply omissions, correct uncertainties, and harmonize
results with justice through a method of free decision. Courts are to H
570 SUPREME COURT REPORTS [1988] 3 S.C.R.

"search for light among the social elements of every kind that are the
A
living force behind the facts they deal with". The power thus put in
their hands is great, and subject, like all power, to abuse;. but we are
not to flinch from granting it. In the long run "there is not guaranty of
justice," said Ehrlich, "except the personality of the judge. Justice
Benjamin N. Cardozo further says at page 112 of the said book that
B judicial process comes then to this, and little more logic, history, ;..,
custom and utility, and the accepted standards of right conduct, are
the forces which singly or in combination shape the progress of the
law. Judges try to see things as objectively as they please. Nonetheless,
we can never see them with any eyes except our own. Therefore, the .:J-
perception of a judge is important and relevant. Judicial process is not . 1
c
only a path of discovery but a path of creation (Cardozo "the Nature of .+
the Judicial Process").

President Roosevelt in his message to the Congress of the United
States on December 8, 1908 stated thus:

D "The chief lawmakers in our country may be, and often
are, the judges, because they are the final seat of authority.
Every time they interpret contract, property, vested rights,
due process of law, liberty, they necessarily enact into law
parts of a system of social philosophy; and as such interpre-
tation is fundamental, they give direction to all law-
E making. The decisions of the courts on economic and social
questions depend upon their economic and social philo-
sophy; and for the peaceful progress of our people during
the twentieth century we shall owe most to those judges
who hold to a twentieth century economic and social

~:
philosophy and not to a long outgrown philosophy, which
F was itself the product of primitive economic conditions."

Justice Benjamin N. Cardozo says that he remembers when the
statement made aroused a storm of criticism. (Cardozo-The Nature
of the Judicial Process-pages 171-173). It betrayed ignorance, he
said, of the nature of the judicial process. Justice Benjamin N.
G Cardozo tells us that the business of the judge, was to discover objec-
tive truth. His own little individuality, his tiny stock of scattered and
unco-ordinated philosophies, these, with all his weaknesses and un-
conscious prejudices, were to be laid aside arid forgotten. According
to Cardozo the truth is, however, that all these inward questionings are
born of the hope and desire to transcend the limitations which hedge
H our human nature. According to Cardozo, Roosevelt, who knew men,
P.N. DUDA v. P.S. SHANK.AR [MUKHARJI, J.] 571

had no illusions on this score. He was not positing an ideal. He was not
A
fixing a goal. He was measuring the powers and the endurance of those
by whom the race was to be run. It is well to remember the words of
Justice Cardozo where he says as follows:

"I P.ave no quarrel, therefore, with the doctrine that the
· judges ought to be in sympathy with the spirit of their B
times. Alas! assent to such a generality does not carry us far
upon the road to truth. In every court there are likely to be
as many estimates of the 'Zeitgeist' as there are judges on
its bench. Of the power of favour or prejudice in any sordid
or vulgar or evil sense, I have found no trace, not even the
faintest, among the judges whom I have known. But every
day there is borne in on me a new conviction of the inescap- c
able relation between the truth without us and the truth
within. The spirit of the age, as it is revealed to each of us,
is too often only the spirit of the group in which the
accidents of birth or education or occupation or fellowship
have given us a place. No effort or revolution of the mind o
will overthrow utterly and at all times the empire of these
subconscious loyalties. "Our beliefs and opinions," says
James Harvey Robinson (32 Political Science Quarterly
315), "like our standards of conduct come to us insensibly
as products of our companionship with our fellow men, not
as results of our personal experience and the inferences E
we individually make from our own observations. We
are constantly misled by our extraordinary faculty of
'rationalizing'-that is, of devising plausible arguments for
accepting what is imposed upon us by the traditions of the
group to which we belong. We are adjectly credulous by
nature, and instinctively accept the verdicts of the group. F
We are suggestible not merely when under the spell of an
excited mob or a fervent revival, but we are ever and
always listening to the still small voice of the herd, and are
ever ready to defend and justify its instructions and warn-
ings, and accept them as the mature results of our own
reasoning." This was written, not of judges specially, but of G
men and women of all classes. The training of the judge, if
coupled with what is styled the judicial temperament, will
help in some degree to emancipate him from the suggestive
power of individual dislikes and prepossessions. It will help
to broaden the group to which his subconscious loyalties
are due. Never will these loyalties be utterly extinguished H
572 SUPREME COURT REPORTS 11988] 3 S.C.R.
~

while h_uman nature is what it is. We may wonder some-
A times how from the play of all these forces of individualism,
there can come anything coherent, anything but chaos and
the void. Those are the moments in which we exaggerate
the elements of difference. In the end there emerges some-
thing which has a composite shape and truth and order. It ..._
B has been said that "History, like mathematics, is obliged to
assume that eccentricities more or less balance each other,
so that something remains constant at last" (Henry Adams,
"The Degradation of the Democratic Dogma," pages 291
and 292). The like is true of the work of courts. The ~I
.-
eccentricities of judges balance one another. One judge
looks at problems from the point of view of history,
c another from that of philosophy, another from that of
social utility, one is a formalist, another a latitudinarian, ""
one is timorous of change, another dissatisfied with the
present; out of the attrition of diverse minds there is beaten
something which has a constancy and uniformity and aver-
D age value greater than its component elements. The same
thing is true of the work of juries. I do not mean to suggest
that the product in either case does not betray the flaws

E
inherent in its origin. The flaws are there as in every human
institution. Because they are not only there but visible, we
have faith that they will be corrected. There is no assurance
that the rule of the majority will be the expression of
.
perfect reason when embodied in constitution or in statute.
We ought not to expect more of it when embodied in the
judgments of the courts. The tide rises and falls, but the
sands of error crumble.

The work of a judge is in one sense enduring and in
~
....
F
another sense ephemeral. What is good in it endures. What
is erroneous is pretty sure to perish. The good remains the
foundation on which new structures will be built. The bad
will be rejected and cast off in the laboratory of the years.
Little by little the old doctrin·e is undermined. Often the
G encroachments are so gradual that their significance is at
first obscured. Finally we discover that the contour of the
landscape has been changed, that the old maps must be
)
cast aside, and the ground charted anew. The process, with
all its silent yet inevitable power, has been described by
Mr. Henderson with singular felicity: "When an adherent
H of a systematic faith is brought continuously in touch with
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.] 573

influences and exposed to desires inconsistent with that
A
faith, a process of unconscious cerebration may take place,
by which a growing store of hostile mental inclinations may
accumulate, strongly motivating action and decision, but
seldom emerging clearly into consciousness. In the
meantime the formulas of the old faith are retained and
repeated by force of habit, until one day the realization B
comes that conduct and sympathies and fundamental
desires have become so inconsistent with the logical
framework that it must be discarded. Then begins the task
of building up and rationalizing a new faith." (Cardozo-
The Nature of the Judicial Process pages 174-179)

If any-one draws attention to this danger and aspect and c
measures an institution by the class content he does not minimise its
dignity or denigrate its authority. Looked in that perspective though at
places little intemperate, the statement of the Minister in this case
cannot be said to amount to interference with the administration of
· justice and as to amount to contempt of court. The Minister's state- D
ment does not interfere with the administration of justice. Administra-
tion of justice in this country stands on surer foundation.

J .A.G. Griffith in "The Politics of the Judiciary", Part I has two
interesting passages on the judiciary which are worth quoting:
E
"There is one matter which I ought to mention. All the
judges, without exception, are members of the Athe-
naeum, and I presume you will wish to be a member. If so,
may I have the pleasure of proposing you? There is a meet-
ing of the Committee early next week."
F
"The most politically influential of the judges, however,
has been the Master of the Rolls, Lord Denning ... With
h,is own modest roots he dismisses the attacks on a class-
based judiciary: The youngsters believe that we come from
a narrow background-it's all nonsense-they get it from
that man Griffith." G

Griffith in his book "The Politics of the Judiciary" at page 234
has tried to incite the concept of the class interest of the judges. Judges
he says are concerned to preserve and. protect the existing order. This
does not mean that no judges are capable of moving with the times, of
adjusting to changed circumstances. But, according to him, their func- H
574 SUPREME COURT REPORTS [1988) 3 S.C.R.

A tion in our society is to do so belatedly. He further says thus:

"Law and order, the established distribution of power both
public and private, the conventional and agreed view
amongst those who exercise political and economic power,
the fears and prejudices of the middle and upper classes,
B these are the forces which the judges are expected to up-
hold and do uphold."

No contempt proceedings were taken in England in respect of
these and one would like to thlnk rightly. Faith in the administration of ~-
justice is not shaken by such criticism.
c Reference may also be made to the decision of this Court in
Conscientious Group v. Mohammed Yunus and others, [1987) 3 S.C.C.
89. In that case there was publication in the Indian Express which
carried the news that Mr. Mohammed Yunus, Chairman, Trade Fair
Authority of India said that the Supreme Court Judge who held that .
D the singing of the National Anthem was not compulsory had no right to
be called either an Indian or a Judge. The Conscientious Group 1
approached this Court for contempt alleging that the conduct of Mr.
1
Mohammed Yunus in making certain adverse comments about the
Judges who delivered the judgment of this Court in Civil Appeal I
No. 860 of 1986 National Anthem case (1986 3 S.C.C. 615) constituted I
E criminal contempt and it should be so dealt with. Notice on this peti-1
tion was issued. When the matter subsequently came up before a1
Bench of three Judges consisting of Bhagwati, C.J., Oza and K.N. 1
Singh, JJ., the contemnor filed a reply stating that the petition was not
1
maintainable inasmuch as the petitioner had not obtained the consent
1
in writing of the Attorney General as required under section 15 ofthe
F Act. It appears that the petitioner was directed by the Division Bench 1
to move the Attorney General for his consent and the petition was'
adjourned. The Attorney General on being moved by the petitioner'
for the grant of consent replied to the petitioner stating that since he·
was himself a party in his capacity as Attorney General in the National'
Anthem case, it was not appropriate for him to deal with the peti-
G tioner's application. When the case later on came up before the same
three Judges Bench on December 12, 1986, the learned Judges
directed the withdrawal of the petition with liberty to the petitioner to
refile the application after obtaining consent of the Attorney General
as soon as the National Anthem case was over. It was further observed'
by this Court that everyone is entitled to criticise the judgment of the
H court but no one should attack the Judges who delivered the judgment
'i
P.N. DUDA v. P.S. SHANKAR !MUKHARJI, J.] 575

as that denigrates the judicial institution and in the long term impairs
A
the democratic process.

Subsequently the petitioner in that case filed Criminal Miscel-
laneous Petition No. 5244 of 1986 praying for recalling the aforesaid
order on the ground that at the time when he applied to the court for
withdrawal of the petition h~ was not aware that under Rule 3(c) of the B
Rules framed by this Court, the contempt petition could be maintained
with the consent of the Solicitor General, if the Attorney General, for

-r- any reason, was not in a position to give consent to the filing of the
petition. He was so allowed. Thereafter the petitioner approached the
Solicitor General. But the Solicitor General declined to give the

• consent in public interest. He gave certain reasons in support of his
conclusion. The Court in the af<lresaid decision by scrutinising reasons
was of the opinion that the reasons stated by the Solicitor General
refusing to grant consent could not be said to be irrelevant and the
c

petition was dismissed. In dismissing this application this Court
observed at page 93 of the report "No doubt, by the last of the
sentence of the said Order, the Bench has also observed that 'the D
petitioner will not be without remedy, if the Solicitor General refuses
his consent on any irrelevant ground' but this only means that such a
refusal can be called in question before this Court by the petitioner by
appropriate process". In other words, the effect of the decision is that
the reasons given by the Attorney General or the Solicitor General in
giving or not giving his consent were justiciable. E

As we have mentioned before the speech of the Minister has to
be read in its entirety. In the speech as we have set out hereinbefore it
appears that Shri P. Shiv Shankar was making a study of the attitude of
this Court. In the portion set out hereinbefore, it was stated that the
Supreme Court was composed of the element from the elite class. F
Whether it is factually correct or not is another matter. In our public
life, where the champions of the down-trodden and the politicians are
mostly from the so-called elite class, if the class composition is
analysed, it may reveal interesting factors as to whether elite class is
dominant as the champions of the oppressed or of social legislations
and the same is the position in the judiciary. But the Minister went on G
to say that because the Judges had their 'unconcealed sympathy for the
haves' interpreted the expression 'compensation' in the manner they
did. The expression 'unconcealed' is unfortunate. But this is also an
expression of opinion about an institutional pattern. Then the Minister
went on to say that because of this the word 'compensation' in Article
31 was interpreted contrary to the spirit and the intendment of the H
576 SUPREME COURT REPORTS 11988] 3 S.C.R.

Constitution. The Constitution therefore had to be amended by the
A Jst, 14th and 17th Amendments to remove this 'oligarchic' approach of
the Supreme Court with little or no help. The inter-action of the
decisions of this Court and the Constitutional amendments have been
viewed by the Minister in his.speech, but that is nothing new. This by
itself does not affect the administration of justice. On the other hand,
B such a study perhaps is important for the understanding of the evolution
of the constitutional development. The next portion to which
reference may be made where the speaker has referred to Holmes
Alexander in his column entitled '9 Men of Terror Squad' making a
frontal attack on the functions of the U.S. Supreme Court. There was
a comparison after making the quotation as we have set out herein-
before: "One should ask the question how true Holmes Alexander
c was in the Indian context." This is also a poser on the performance of
the Supreme Court. According to the speaker twenty years of valuable
time was lost in this confrontation presented by the judiciary in intro-
ducing and implementing basic agrarian reforms for removal of
poverty what is the ultimate result. The nation did not exhibit the
D political will to implement the land reform laws. The removal of the
Maharajas and Rajas and privy purses were criticised because of
the view taken by this Court which according to the speaker was con-
trary to the whole national upsurge. This is a study in the historical
perspective. Then he made a reference to the Keshavananda Bharati's
and Golaknath's cases and observed that a representative of the elitist
E culture of this country, ably supported by industrialists and bene-
ficiaries of independence, got higher compensation by the intervention
of the Supreme Court in Cooper's case. This is also a criticism of the
judgment in R. C. Cooper's case. Whether that is right or wrong is
another matter, but criticism of judgments is permissible in a free
. society. There is, however, one paragraph which appears to us to be
F rather intemperate and that is to the following effect:

"Anti-social elements i.e. FERA violators, bride burners
and a whole horde of reactionaries have found their heaven
in the Supreme Court".

G This, of course, if true, is a criticism of the laws. The Supreme
Court as it is bound to do has implemented the laws and in implement- liii.
ing the laws, it is a tribute to the Supreme Court that it has not dis- r
criminated between persons and persons. Criminals are entitled to be
judged in accordance with law. If anti-social elements and criminals
have benefited by decisions of the Supreme Court, the fault rests with
H the laws and the loopholes in the legislation. The Courts are not deter-
red by such criticisms.
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 577

Bearing in mind the trend in the Jaw of contempt as noticed
A
before, as well as some of the decisions noticed by Krishna Iyer, J. m
S. Mulgaokar's case (supra) the speech of the Minister read in its
proper perspective, did not bring the administration of justice into
disrepute or impair administration of justice. In some' portions of the
speech the language used could have been avoided by the Minister
having the background of being a former Judge of the High Court. The B
Minister perhaps could have achieved his purpose by making his
language mild but his facts deadly. With these observations, it must be
held that there was no imminent danger of interference with the
administration of justice, nor of bringing a institution into disrepute.
In that view it must be held that the Minister was not guilty of
contempt of this Court.
c
The view we have taken on this aspect of the matter would have
been sufficient to dispose of this petition. But another question of law
of some importance has arisen in this matter. Under the Act in case of
criminal contempt other than a contempt referred to in section 14
which is not the facts of this case, namely, a contempt in the fact of this D
Court or a High Court, this Court or the High Court may take action
either on its own motion or on a motion made by the Advocate-
General which in relation to this Court means the Attorney General or
the Solicitor General or any other person with the consent of the
Attorney General in terms of section 15 of the Act. Therefore, cogni-
zance for criminal contempt could be taken by the Court by three E
methods namely, on its own motion, or on the motion of the Attorney .
General or the Solicitor General or on motion by any other person
r with the consent of the Attorney General or the Solicitor General.
Therefore, the only course open to a citizen for initiating proceedings
for contempt where the Court does not take cognizance on its motion
or where the Attorney General or the Solicitor General does not take F
action is to move for consent in writing of the Attorney General or the
Solicitor General. The question is, does it cast a duty upon the
Attorney General or the Solicitor General to consider application for
grant of such consent and whether the granting or non-granting of such
consent is justiciable by the Court and if ·so whether the question of
non-granting can be brought up in a rolled application moved by a G
person to bring it to the notice of the Court to take action suo motu
and at the same time to consider whether in the same proceeding the
action of the Attorney General or the Solicitor General in granting or
· not granting consent can be challenged or it must be always by an
independent proceeding. The consent certainly is linked up with
contempt proceedings. Indeed Mohammed Yunus' case (supra) was H
578 SUPREME COURT REPORTS (1988] 3 S.C.R.

dismissed because no consent was obtained. In the instant case the
A
Minister has taken the plea that consideration of this case cannot be
taken because there is no consent of the law officers. Does it or does it
not "tend to interfere with due course of judicial proceedings" in
terms of clause (ii) of section 3( c) of the Act? If so is it justiciable in
these proceedings? Attorney General and Solicitor General of India in
B respect of this Court occupy positions of great importance and rele-
vance. Attorney General, though unlike England is not a member of
the Cabinet yet is a friend of the Court, and in some respects acts as
the friend, philosopher and guide of the Court. (See Art. 76 of the
Constitution). Yet the Act vests him with certain discretions. All statu-
tory discretions are justiciable in a society governed by the rule of law.
One must remember the remarks of Thomas Fuller- "Be you ever so
c high, the law is above you" and this Court is the finder and interpreter
of that law in cases of this nature with the assistance of Attorney
General and in his absence or inability the Solicitor General.

It is well to remember what Burke said in the House of
D Commons in 1772 in connection with the motion for select committee
for enquiry into the affairs of the East India Company and Clive. He
said that when discretionary power is lodged in the hands of any man
or class of men, experience proves that it will always be abused. Where
no laws exist men must be arbitrary and very necessary acts of govern-
ment will often be, in such cases, represented by the interested and
E malevolent as instances of wanton oppression (Clive of lndia-Nirad
C. Chaudhry, page 381). Times have changed here, the discretion is
vested on a very high dignitary and a friend of the Court, yet it is
subject to scrutiny.

On this aspect it is necessary to refer to the letter dated 3rd 'ti
F December, 1987, which Shri P.N. Duda, petitioner herein wrote to the
Attorney General wherein he requested for grant of consent for
initiating contempt proceedings against Shri P. Shiv Shankar and
others namely, the Editor, Hindustan Times and the Printer and
Publisher, Hindustan Times. After setting out the contempt as alleged
by him in that letter, he stated, inter alia, as follows:
G
"I am more aware than any that you may feel embarrassed
in giving consent for prosecution of Shri Shiv Shankar, who
happens to be the Minister who effectively hires and fires
law officers, and for all purposes during whose pleasure
they hold their offices. Since emergency period we have
H seen the modalities_ of this hiring and firing which causes
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.J 579

apprehensions in my mind about the possible outcome of A
this request. I, however, thought it fit to make this request,
reminding you of your duties as the ex-officio leader of the
bar to give your consent for prosecution of the persons
named. The other two are being named because the one is
the Editor and the other the Printer and Publisher of the
B
paper, viz. the Hindustan Times, which published the
report.

I will expect you to take a decision in this matter within a
week of the receipt of this request. If I do not hear from
you in either way, I will presume that.you have declined the
consent. In that event I will consider myself free to move c
the court for taking action on its own motion under section
15(1)(a) of the Contempt of Couris Act 1971 seeking my
participation as an amicus curiae." '

A copy of the said letter was sent to the Solicitor General of
D
India with reques_t to treat it as a request made to him independently
also under section 15(1)(b) of the Act read with Rule 3(3) of the
Supreme Court Contempt of Court Rules, 1975. He wrote another
letter on 8th December, 1987 in which he reminded the Attorney
General of certain stand taken by him in respect of Shri Charanjit Lal
Sahu. The relevant portion of the said letter reads as follows:
E
"I may invite your attention to the remarkable stand you
took when a PIL matter initiated by Shri Charanjit Lal
Sahu came before a bench of the Supreme Court, and how
concerned you felt in seeing Shri Sahu being prosecuted for
having made some statements about the Court, which were
F
more foolish than intemperate, for maintaining the dignity
of the court. No-one would have taken Mr Shau's state-
ment seriously, nor was it addressed to a large audience.
Shri Shiv Shankar's diatribe against the Supreme Court is
more intemperate, is addressed to a very nation-wide large
audience, and the maker of the statement is a man of
status, whom no-one will ignore. I think you will keep this G
aspect in mind in Considering my request."

A copy of the said letter was also forwarded to the Solicitor
General of India. In reply the Attorney General wrote a letter on 14th
December, 1987 in which he stated, inter alia, as follows:
H
580 SUPREME COURT REPORTS 11988] 3 S.C.R.

"You suggest that we cannot discharge our duties impar-
A
tially. In other words, you have sought to undermine the
credibility of any decision we may take. These two deeply
hurtful allegations are calculated to ensure that in which-
ever way we exercise our function, justice will not be seen
to be done. Therefore, we feel that in the circumstances no
B useful purpose will be served in exercising our function at
all.

This letter has the approval of the Solicitor General to
whom a copy of your letter was sent."

Shri Duda wrote another letter on 19th December, 1987 both to
c the Attorney General and the Solicitor General, in which he stated,
inter alia, as follows:

"Needless to point out that your letter is suggestive of your
refusal to discharge your duty to accede or not to accede to
D my request of granting sanction and legally I am entitled to
a mandamus against you from an appropriate court seeking
direction against you to decide the matter, one way or the
other. I have thought it fit to make an alternative request to
you to relieve me of the unpleasant duty of seeking relief in
any other way."
E
After setting out the facts in the petition, the petitioner inter alia,
stated that he had approached the learned Attorney General and the
Solicitor General to look into these aspects of the matter and accord
sanction. The conduct of the said respondent No. 2 and respondent
No. 3, according to the petitioner, amounted to refusal to exercise
F jurisdiction vested in them by law and, therefore, they were impleaded
as parties in the present proceedings (as necessary and/or proper
parties) in order that they may get an opportunity to justifying the
stand they have taken in the matter flowing from their refusal to exer-
cise jurisdiction. Upon this notice was issued by this Court to all the
respondents in the manner indicated above.
G
Shri Gopal Subramaniam has appeared before us and filed a J..
statement signed by the learned Attorney General and also made his
oral submissions. Shri Trivedi, intervener has also made his submis-
sions. The main plank of their submissions is that the actions of the
Attorney General and the Solicitor General to act were motivated
H because of the allegation of bias in the aforesaid letter. Reliance was
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 581

placed in the case of V assiliades v. Vassiliades and another, A.LR.
A
1945 P.C. 38 where the Judicial Committee reiterated that it was
highly 'desirable that all proceedings should be dealt with by persons
who are ·above any suspicion, however, unreasonable, of being biased.
It was reiterated that in any case, there was no question of the
petitioner being without remedy because the Court can always take
action suo motu. The question, therefore, is whether there was a duty B
cast upon the Attorney General or the Solicitor General to consider
the question of granting consent in terms of clause (b) of section 15(1)
of the Act in an appropriate case and if in fact such consent was not
granted that question could be considered by the Court. It is not a
question of making the Attorney General or the Solicitor General a
party to a contempt proceeding in the sense that they are liable for
contempt, but if the hearing of the contempt proceedings can be better c
proceeded by obtaining the consent of the Attorney General or the
Solicitor General and the question of justiciability of giving the con-
sent is interlinked on the analogy of Order II Rule I of the Code of
Civil Procedure which has application to a civil proceeding and not to a
criminal proceeding, it is permissible to go into this question. Indeed, D
in the case of Conscientious Group (supra) precisely this was done,
where an application for contempt was filed and which was revived
pursuant to the previous order and the Court while doing so had
reserved the right to consider on the previous occasion the question if
the Solicitor General refuses to give consent improperly or on irrele-
vant ground the Court could consider that question. In the case of E
Conscientious Group, (supra) the Court went into the reasons given by
the Solicitor General declining consent. This Court in that case held on
examination that such consent was properly refused. This is a comp-
lete answer to the contention that in a contempt petition the grounds
for either giving consent or not giving consent or for not considering
· the application for consent are justiciable and that question can not be F
gone into in that proceeding though it must be emphasised in that
proceeding that the Solicitor General was not made a party to the
proceeding. In my opinion it will be more appropriate for an officer of
the Court whose action is being investigated to be made a party in the
proceedings otherwise it would be violative of the rule of audi alteram
partem. On behalf of the learned Solicitor General, Shri A.K. Ganguly G
'has made elaborate submissions. It was submitted by Shri Ganguly
that the procedure followed by the petitioner simultaneously seeking
the consent of the Attorney General was not proper and the Solicitor
General had been invoked and that was not proper and legal. It is not
possible to accept this submission. It was contended that there was no
doctrine of necessity applicable in this case because even if the H
582 SUPREME COURT REPORTS [1988] 3 S.C.R.

Attorney General or the Solicitor General does not give consent a
A
party is not without a remedy and can bring this to the notice of the
Court. Discretion vested in law officers of this Court to be used for a
public purpose in a society governed by rule of law is justiciable.
Indeed, it was gone into in the case of Conscientious Group (supra)
and it will be more appropriate that it should be gone into upon notice
B to the law officer concerned. It is a case where appropriate ground for
refusal to act can be looked into by the Court. It cannot be said as was
argued by Shri Ganguly that the refusal to grant consent decides no
right and it is not reviewable. Refusal to give consent closes one chan-
nel of initiation of contempt. As mentioned hereinbefore there are
three different channels, namely, (I) the Court taking cognizance on
its own motion; (2) on the motion by the Attorney General or the
c Solicitor General; and (3) by any other person with the consent in
writing of the Attorney General or the Solicitor General. In this case
apparently the Attorney General and the Solicitor General have not
moved on their own. The petitioner could not move in accordance with
law without the consent of Attorney General and the Solicitor General
D though he has a right to move and the third is the court taking notice
suo motu. But irrespective of that there was right granted to the
citizen of the country to move a motion with the consent. In this case
whether consent was to be given or not was not considered for the
reasons stated by the Attorney General. Those reasons are linked up
with the Court taking up the matter on its own motion. these are
E inter-linked. In that view of the matter these are justiciable and indeed
it may be instructive to consider why this practice grew up of having
the consent. This was explained in S.K. Sarkarv. V.C. Misra, [1981] 2

F
S.C.R. 331 where Sarkaria, J. speaking for the Court observed at page
339 of the report that the whole object of prescribing these procedural
modes of taking cognizance under section 15 of the Act was to safe-
guard the valuable time of the High Court or the Supreme Court being
,_
· ..

wasted by frivolous complaints of contempt of court. Frequent use of
this suo motu power on the information furnished by an incompetent
petition, may render these procedural safeguards provided in sub-
section (2), otiose. In such cases, the High Court may be well advised
to avail of the advice and assistance of the Advocate-G~neral before
G initiating proceedings. In this connection the Court referred to the
observations of Sanyal Committee appointed to examine this question
where it was observed: "In the case of criminal contempt, not being
contempt committed in the face of the court, we are of the opinion that
it would lighten the burden of the court, without in any way interfering
with the sanctity of the administration of justice, if action is taken on a
H motion by some other agency. Such a course of action would give
P.N. DUDA v. P.S. SHANKAR (MUKHARJ!, J.] 583

considerable assurance to the individual charged and the public at
A
large. Indeed, some High Courts have already made rules for the
association of the Advocate-General in some categories of cases at
least , .. " It was the practice that except where the Court feels inclined
to take action suo motu parties were entitled to move only by the
consent. If no justiciable reason was given in an appropriate case and
such consent was refused can it be said that it would not be propeI for B
the Court to investigate the same?

- '><· The question of contempt of court came up for consideration in
. the case of C.K. Daphtary and others v. O.P. Gupta and others, [1971]
Suppl. S.C.R. 76. In that case a petition under Article 129 of the
Constitution was filed by Shri C.K. Daphtary and three other advo-
cates bringing to the notice of this Court alleged contempt committed c
by the respondents. There this Court held that under Article 129 of the
Constitution this Court had the power to punish for contempt of itself
and under Article 143(2) it could investigate any such contempt. This
Court reiterated that the Constitution made this Court the guardian of
fundamental rights, This Court further held that under the existing law D
of contempt of court any publication which was calculated to interfere
with the due course of justice or proper administration of law would
amount to contempt of court. A scurrilous attack on a judge, in
respect of a judgment or past conduct has in our country the inevitable
effect of undermining the confidence of the public in the Judiciary; and
if confidence in Judiciary goes administration of justice definitely E
suffers. In that case a pamphlet was alleged to have contained state-
ments amounting to contempt of the Court. As the Attorney General
did not move in the matter, the President of the Supreme Court Bar
and the other petitioners chose to bring the matter to the notice of the
Court. It was alleged that the said President and the other members of
the Bar have .no locus standi. This Court held that the Court could F
issue a notice suo motu. The President of the Supreme Court Bar and
other petitioners were perfectly entitled to bring to the notice of the
Court any contempt of the Court. The first respondent referred to
Lord Shawcross Committee's recommendation in U .K. that "proceed-
ings should be instituted only if the Attorney-General in his discretion
considers them necessary." This was only a recommendation made in G
~ .. the light of circumstances prevailing in England. But that is not the law
in India, this Court reiterated. It has to be borne that decision was
rendered on 19th March, 1971 and the present Act in India was passed
on 24th December, 1971. Therefore that decision cannot be of any
assistance. We have noticed Sanyal Committee's recommendations in
India as to why the Attorney General should be associated with it, and H
584 SUPREME COURT REPORTS [J988) 3 S.C.R.

A thereafter in U.K. there was report of Phillimore Committee in 1974.
In India the reason for having the consent of the Attorney General was
examined and explained by Sanyal Committee Report as noticed
before.

Our attention was drawn by Shri Ganguly to a decision of the
B Allahabad High Court in G.N. Verma v. Hargovind Dayal and others, '"-··
A.LR. 1975 Allahabad 52 where the Division Bench reiterated that
Rules which provide for the manner in which proceedings for
Contempt of Court should be taken continue to apply even after the
enactment of the Contempt of Courts Act, 1971. Therefore cognizance
could be taken suo motu and information contained in the application
c by a private individual could be utilised. As we have mentioned
hereinbefore indubitably cognizance could be taken suo motu by the
Court but members of the public have also the right to move the
Court. That right of bringing to the notice of the Court is dependent
upon consent being given either by the Attorney General or the
Solicitor General and if that consent is withheld without reasons or
D without consideration of that right granted to any other person under
section 15 of the Act that could be investigated on an application made
to the Court.

It was contended that neither the Attorney General nor the
Solicitor General were proper or necessary parties. Reliance was
E placed on B.K. Kar v. The Chief Justice and his Companion Judges of
the Orissa High Court and others, I19621 I S.C.R. 319. In that case
under an order passed by the appellant, a Magistrate, one G was put in
possession of some property on October 14, 1955. In revision the order
was set aside by the High Court on August 27, 1957 and the opposite
party S applied on November 20, 1957 to the appellant for redelivery
F of possession. G applied to the High Court for a review of its previous
order and on November 25, 1957, the application was admitted and
an interim stay was granted of the proceedings before the appellant. A
telegram addressed to a pleader, not the counsel for G, was filed along
with the application. The appellant refused to act on this application
and telegram and on November 27, 1957, he allowed the application of
G S for restitution. On November 28, 1957, a copy of the order of the
High Court was received and thereupon the writ for redelivery of
possession was not issued. The High Court convicted the appellant for
contempt of court for passing the order for restitution on November
27, when the High Court had stayed the proceedings. The appellant
appealed to this Court and impleaded the Chief Justice and Judges of
H the High Court as .respondents. This Court held that the appellant was
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 585

not guilty of contempt of court. It further held that in a contempt
A
matter the Chief Justice and Judges of the High Court should not be
made parties and the title of such a proceeding should be "In re .....
the alleged contemnor". Mudholkar, J. speaking for the Court
observed at page 321 of the report that the decision of Judges given in
a contempt matter is like any other decision of those Judges, thaUs, in
matters which come up hefore them by way of suit, petition, appeal or B
reference. Since that was the real position, this Court observed that
there was no warrant for the practice which was in vogue in India
- }t. there., and which had been in vogue for over a century, of makirig the
Chief Justice and Judges parties to an appeal against the decision of a
High Court in a contempt matter. The said observations ·were sought
to be relied in aid of the proposition that where the decisiqn of the
Attorney General or the Solicitor General was involved, they were not c
necessary or proper parties. Reliance on this decision for this purpose
is entirely misconceived. Where an appeal comes to this Court, which
is a judicial decision, the Judges who rendered the decision are not
necessary parties. There is no !is between a suitor and a judge in a
judicial adjudication. But the position is entirely different where there D
is suitor claiming the exercise of a statutory right in his favour which he
alleges is hampered by an official act of a named official in the Act. In
respect of justiciability of that act of the official there is a !is and if that
!is is inter-linked with the proceeding for contempt, there is warrant for
niaking him party in that proceeding though the prayers and the notice
must be issued differently. E

As mentioned hereinbefore in the case of S. C. Sarkar v. V. C.
Misra (supra) this Court had observed that it may well be advices to
avail of the advised and assistance of the Advocate General before
initiating proceedings. Shri Ganguly appearing for the Solicitor
General sought to urge .before us that advice and assistance could not F
be compelled by a suitor. This cannot be agreed to. The statute gives a
right to a suitor to move the Court in one of the contingencies for
contempt or bring to the notice of the Court the contempt with the
advice and assistance of the Attorney General or the Solicitor General.
If such right is not considered on relevant materials then that action is
justieiable in an appropriate proceeding for contempt. G

Reference may be made to the case of Attorney Ger.era/ v. Times
Newspapers Ltd., [1973] 3 All E.R. 54. In that case a drug company
began to make and sell in the United Kingdom a sedative which con-
tained the drug thalidomide. Lord Morris observed in that case that
the purpose and existence of courts of law is to preserve freedom H
586 SUPREME COURT REPORTS [1988] 3 S.C.R.

within the Jaw for all well disposed members of the community and
A
anything which hampers the administration of law should be prevented
but it does not mean that if some conduct ought to be stigmatised as
being contempt of court it could receive absolution and be regarded as
legitimate because it had been inspired by a desire to bring about a
relief of some distress which was a matter of public sympathy and
B concern. Dealing with this aspect Lord Cross of Chelsea has observed
that 'contempt of court' means an interference with the administration
of justice and it is unfortunate that the offence should continue to be
known by a name which suggests to the modem mind that its essence is
a supposed affront to the dignity of the court. 'Justice' he said is an
ambiguous word. When we speak of the administration of justice we
mean the administration of the law, but often the answer which the law
c gives to some problem is regarded by many people as unjust. Lord
Cross further observed that there must be no prejudging of the issues
in a case is one thing. To say that no one must in any circumstances
exert any pressure on a party to litigation to induce him to act in
relation to the litigation in a way in which he would otherwise not
D choose to act is another and a very different thing. Lord Cross at page
87 of the report observed as follows:

"In conclusion I would say that I disagree with the views
expressed by Lord Denning MR and Phillimore Ll (1973 1
All E.R. 815) as to the 'role' of the Attorney-General in
E cases of alleged contempt of court. If he takes them up he
does not do so as a Minister of the Crown 'putting the
authority of the Crown behind the complaint'-but as
'amicus curiae' bringing to the uotice of the court some
matter of which he considers that the court shall be in-
formed in the interests of the administration of justice. It
·~
F is, I think, most desirable that in civil as well as in criminal
cases anyone who thinks that a criminal coutempt of court
has been or is about to be committed should, if possible,
-·-
place the facts before the Attorney-General for him to
consider whether or not those facts appear to disclose a
contempt of court of sufficient gravity to warrant his bring-
G ing the matter to the notice of the court. Of course, in some
cases it may be essential if an application is to be made at
all for it to be made promptly and there may be no time for
the person affected by the 'contempt' to put the ,facts
before the attorney before moving himself. Again the fact
that the attorney declines to take up the case will not pre-
H vent the complainant from seeking to persuade the court
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 587

that notwithstanding the refusal of the attorney to act the
A
matter complained of does in fact constitute a contempt of
which the court should take notice. Yet, again, of course,
there may be cases where a serious contempt appears to
have been committed but for one reason or another none of
the parties affected by it wishes any action to be taken in
respect of it. In such cases if the facts come to the B
_..,;,;__'
knowl.edge of the attorney from some other source he will
naturally himself bring the matter to the attention of the
court."

->-
!
Lord Cross has noticed in his speech that if the Attorney General
declines to take up the case, it will not prevent the complainant from
seeking to persuade the Court that notwithstanding refusal of the C
Attorney General to act, the matter complained of does, in fact,
constitute a contempt of which the Court should take notice. But that
does not derogate the rights of the individual to move the Court. See
the observations of Lord Reid. In Indian Express Newspapers
(Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and others, [1985] 1 D
S.C.C. 641, the observations of the aforesaid decision in Thalidomide
case were relied upon.

Reliance was also placed on the observations of the House of
Lords in Gouriot and others v. H.M. Attorney General, [1978] Appeal
Cases 435. There it held the initiation of litigation and the determi- E
nation of the question whether it is a proper case for the Attorney
General to proceed in, is a matter entirely beyond the jurisdiction of
that or any other Court. It is a question which the law has made, to
reside exclusively in the Attorney General. The House of Lords was
reversing the decision of the Court of Appeal in the celebrated case of
Gouriet v. Union of Post Office Workers, [1978] Appeal Cases 435 F
where the House of Lords could find no legal basis for the lower
courts' attempt to outflank the Attorney General's refusal to grant his
fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges,
Denning M.R., Lawton and Ormrod LJ, upheld the plaintiff's claim
for declaration and interim in junction even in the absence of fiat by
the Attorney General. The statutory provisions were entirely diffe- G
rent. It may be in the context that the Attorney General had to move
in his discretion which is not justiciable. But in our opinion it is justici-
able. English decisions are of persuasive value and we would prefer to
resi out decision on the observations of Lord Denning in Gouriet v.
Union of Post Office Workers & Ors., [1977] I Q.B. 729 at 752 to 763
though made in connection with the Attorney General's discretion in H
588 SUPREME COURT REPORTS [1988] 3 S.C.R.

giving consent in instituting a suit for injunction by a member of the
A
public. In U.K. the position of Attorney General as a member of the
Cabinet is different. There the contempt of Court is regulated by
different statutory provisions which were examined by a Committee
known as Phillimore Committee Report. See also the observations of
Sikri J. as the Chief Justice then was, in C.K. Daphtary & Ors. (supra)
B at page 109 of the report.

Our attention was drawn to the decision of the Andhra Pradesh
High Court in Rajagopal Rao v. Murtza Mutjahdi, [1974] 1 Andhra
Law Times 170. We are unable to accept the ratio stated in view of the
terms of section 15 of the Act. Our attention was also drawn to the case
of N. Venkataramanappa v. D.K. Naikar, A.LR. 1978 Karnataka 57.
c It is also not possible to accept the position that under no circum-
stances the exercise of discretion by the Attorney General or Solicitor
General cannot be enquired into.

Having considered the peculiar facts and circumstances of this
D case and the allegation of bias which were made against the Attorney
General and the Solicitor General, it appears that the Attorney
General and the Solicitor General acted properly in declining to deal
with the matter and the Court could deal with the matter on attention
being drawn to this Court.

E In the aforesaid view of the matter, this petition fails and it is
accordingly dismissed and the application of Shri Trivedi is accordingly
disposed of.

RANG ANATHAN, J. I agree with the conclusion of my learned
brother that no case has been made but for initiating contempt pro-
--
F ceedings against respondent No. 1. The principles applicable to, and
the case law on the subject have been discussed by him at length and I
do not have much to add. The impugned. comments were made by
respondent No. 1 in the course of his key note address at a seminar on
'Accountability of the Legislature, Executive and Judiciary under the
Constitution of India' organised by a Bar Council. Though, in view of
G the position held by the speaker, the contents of the speech, and, in
particular, some 'savoury' passages therefrom have been highlighted
in a section of the Press, the speech was made before an audience
comprising essentially of lawyers, jurists and judges. The speech
represented primarily an exercise by the speaker to evaluate the roles
of the executive, legislature and judiciary in this country since its inde-
H pendence and to put forward the theory that, like the executive and
P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.I 589

the legislature, the judiciary must also be accountable to the people.
The petitioner contends that there are certain passages in the speech A
which seem to attribute a sub-conscious partiality, bias or predelictiol1
in judges in disposing of various matters before them and that these
comments fall within the scope of the decision of this Court in the case
of E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, [1970] 2
S.C.C. 325. Barrie & Lowe in their "Law of Contempt," (Second B
Edition, PP. 233, 240-1) and Arlidge and Eady in their "Law of
Contempt" (Second Edition, PP. 162-3, 168), on a review of the
judicial decisions on the topic, seem to suggest that even allegation of
-~ partiality and bias on the part of judges may not amount to contempt
so long as it is free from the taint of 'scurrilous abuse' and can be
considered to be 'fair comment'. The observations made by the Lord
Justice Phillimore Committee on Contempt of Court in 1974 0'1 this c
type of contempt (Paras 160 & 161) also make interesting reading. I do
not, however, think it is necessary to pursue this aspect of the matter.
In the present case, it is true, as pointed out by my learned brother,
there are passages in the speech which, torn out of context, may -be
liable to be misunderstood. But reading the speech as a whole and D
bearing in mind the select audience to which it was addressecl, I agree
with my learned brother no contempt has been committed. I think that
we should accept, at its face value, the affidavit of respondent No. 1
that the speech was only a theoretical dissertation and that he intended
no disrespect to this Court or its functioning.
E
2. The second aspect of the case on which arguments have been
addressed before us relate to the procedure to be followed in such
matters. As this aspect raises some important issues, I would like to
state my views thereon separately.

3. The criminal miscellaneous petition filed by the petitioner F
purports to be only "information" u/s 15(1)(a) and (b) of the
Contempt of Courts Act, 1971 ('the Act'). The petitioner seeks to
inform this Court that he came to know from a report in 'Hindustan
Times' that respondent No. 1, in the course of a speech delivered by
him at Hyderabad on November .28, 1987, had made certain state-
ments which, in the petitioner's opinion, rendered him liable to be G
proceeded against for comtempt of court. Appending what is stated to
be a full text of the said speech as published in the 'Newstime", the
petitioner prays that this Court should be pleased to "initiate contempt
of court proceedings suo motu under S. 15(1) of the Contempt of
Court Act, 1971 read with rule 3(a) of the Supreme Court (Contempt
of Court) Rules, 1975". Though the prayer is vague as to the person H
590 SUPREME COURT REPORTS [1988[ 3 S.C.R.

against whom the proceedings are to be initiated, the allegations in the
A
petition leave no doubt that it is respondent No. ), and only he, who,
even according to the petitioner, is to be charged with contempt.
Nevertheless, the petitioner has added three more respondents to the
Criminal Miscellaneous Petition, namely the Attorney General of
India (by name), the Solicitor General of India (by name) and Sri
13 Ramoji Rao, Editor of "Newstime". In my opinion, this petition raises
certain question of general importance which need to be discussed so
as to evolve a proper procedure, at least for future guidance in these
matters. I proceed to discuss these aspects.
4. Article 129 of the Constitution declares that the Supreme
Court shall be a court of record and that it shall have all the powers of
c such a court including the power to punish for contempt of itself.
However, the powers of the Supreme Court and High Court in this
regard have been recently classified in the Contempt of Courts Act,
197]. This Act defines "contempt of court" and classifies it into two
categories, "civil contempt" and "criminal contempt". These defini-
tions need not be set out here, particularly as the petitioner has filed a
D
'criminal miscellaneous petition and it is quite clear that what he seeks
to charge respondent No. 1 with is "criminal contempt". Section 14
deals with contempt in the face of the court and we are not concerned
with it here. Section 15 specifies how criminal contempt is to be taken
cognizance of. It will be useful to set out here the relevant portions of this
section:
E
"15. Cognizance of criminal contempt in other cases-

(1) In the case of a criminal contempt, other than a con-
tempt referred to in Section 14, the Supreme Court or the
· High Court may take action on its own motion or on a
F motion made by-

(a) the Advocate-General, or
.,'
(b) any other person, with the consent in writing of the
Advocate-General, or
G
(c) in relation to the High Court for the Union Territory of
Delhi, such law officer as the Central Government may, by
notification in the official Gazette, specify in this behalf, or
any other person, with the consent in writing of such law
officer.
H xxx xxx xxx
P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.] 591

(3) Every motion or reference made under the section
A
shall specify the contempt of which the person charged is
:' alleged to be guilty.

' Explanation- In this section, the expression "Advocate-
' general" means
B
(a) In relation to the Supreme Court, the Attorney-
General or the Solicitor-General;

-"
'
xxx xxx xxx

5. This Court has, with the approval of the President, framed, in
exercise of its powers under section 23 of the Act read with article 145
,.

C
of the Constitution, rules to regulate proceedings for contempt of the
Supreme Court. The rules relevant for our present purpose are the
following:

3. In case of contempt other than the contempt referred to D
in rule 2, the Court may take action:

(a) suo motu, or

(b) on a petition made by Attorney General, or Solicitor
General or E

( c) on a petition made by any person, and in the case of a
criminal contempt, with the consent in writing of the At-
torney General or the Solicitor General.

• '--W • 4.(a) Every petition under rule 3(b) or (c) shall contain: F

(i) the name, description and place of residence of the
petitioner or petitioners and of the persons charged;

(ii) nature of the contempt alleged, and such material
facts, including the date or dates of commission of the G
alleged contempt as may be necessary for the proper
determination of the case;

(iii) if a petition has previously been made by him on the
same facts, the petitioner shall give the details of the
petition previously made and shall also indicate the result H
thereof;
592 SUPREME COURT REPORTS [1988] 3 S.C.R.
•i
(b) The petition shall be supported by an affidavit.
A
(c) where the petitioner relies upon a document or docu-
ments in his possession or power, he shall file such
document or documents of true copies thereof with the
petition.
B
(d) No court-fee shall be payable on the petition, and on
any documents filed in the proceedings.

5. Every petition under rule 3(b) and (c) shall be posted
before the Court for preliminary hearing and for orders as
to issue of notice. Upon such hearing, the Court, if satisfied
c that no prima facie case has been made out for issue of
notice, may dismiss the petition, and, if not so satisfied
direct that notice of the petition be issued to the
contemner.

D 6.(1) Notice to the person charged shall be in Form I. The
persons charged shall, unless otherwise charged shall, un-
less otherwise ordered, appear in person before the Court
as directed on the date fixed for hearing of the proceedings,
and shall continue to remain present during hearing till the
proceedings is finally disposed of by order of the Court.
E
(2) When action is instituted on' petition, a copy of the
petition along with the annexures and affidavits shall be
served upon the person charged.

10. The Court may direct the Attorney General or , ~~
F Solicitor General to appear and assist the Court. ·9 II!!
6. A conjoint perusal of the Act and rules makes it clear that, so
far as this Court is concerned, action for contempt may be taken by the
Court on its own motion or on the motion of the Attorney General (or
Solicitor General) or of any other person with his consent in writing.
G there is no difficulty where the court or the Attorney-General choose
to move in the matter. But when this is not done and a private person
desires that such action should be taken, one of three courses is open
to him. He may place the information in his possession before the
Court and request the Court to take action: (vide C.K. Daphtary v.
O.P. Gupta, [1971] Suppl. S.C.R. 76 and Sarkar v. Misra, 11981] 2
H S.C.R. 331); he may place the information before the Attorney
-
..
I
P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.] 593

General and request him to take action; or he may place the iriforma-
A
tion before the Attorney General and request him to permit him to
move the Court. In the present case, the petitioner alleges that he has
failed in the latter two courses-this will be considered a little later-
and has moved this "petition" praying that this Court should take suo
motu action. The "petition" at this stage, constitutes nothing more
than a mode of layirig the relevant information before the Court for B
such action as the Court may deem fit and no proceedings can com-
mence until and unless the Court considers the information before it
and decides to initiate proceedirigs. Rules 3 and 4 of the Supreme
-)i Court (Contempt of Court) Rules also envisage a petition only where
the Attorney General or any other person, with his written consent,
•
moves the Court. Rule 5 is clear that only a petition moved under rule
3(b) and (c) is to be posted before the Court for preliminary hearing. c
The form of a criminal miscellaneous petition styling the informant as
the petitioner and certairi other. persons as respondents is inappro-
priate for merely lodging the relevant information before the Court
under rule 3(a). It would seem that the proper title of such a proceed-
ing should be" In re ..... (the alleged contemner)" (see: Karv. Chief D
Justice, I1962] 1 SCR 320 though that decision related to an appeal
from an order of conviction for contempt by the High Court). The
form in which this request has to be sought and considered in such
cases has also been touched upon by the Delhi High Court in Anil
Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1. This case, at the
outset, poirited out that the iriformation had been erroneously E
numbered by the office of the Court as Criminal Original No. 51 of
1978 and concluded with the following observations:

"The office is to take note that in future if any information
is lodged even in the form of a petition inviting this court to
take action u/s 15 of the Contempt of Courts Act or Article F
215 of the Constitution, where the information is not one of
the persons named ill section 15 of the said Act, it should
not be styled as a petition and should not be placed before
the judicial side. Such a petition should be placed before
the Chief Justice for orders in chambers and the Chief
Justice may decide either by himself or in consultation with G
the other judges of the court whether to take any cogni-
:1-. zance of the information. The office to direct to strike off
the information as "Criminal Original No. 51of1973" and
to file it."

I think that the direction given by the Delhi High Court sets out H
594 SUPREME COURT REPORTS [1988] 3 S.C.R.

A the proper procedure in such cases and may be adopted, atleast in
future, as a practice direction or as a rule, by this Court and other High
Courts. However, a petition having been filed and similar petitions
having perhaps been entertained earlier in several courts, I do not
suggest that this petition should be dismissed on this ground.
I
B 7. In this case, apart from filing his information in the form of a
miscellaneous petition, the petitioner has added as respondents to the
-•
petition not only the alleged contemner bnt three more persons. He
says that he approached the Attorney General of India and the
Solicitor General of India for their written consent to enable him to
file a petition under Section 15( 1) read with rule 3(c) but that they
C have refused to exercise the jurisdiction vested in them by law and
that, therefore, "they have been impleaded as parties in the present
proceedings (as necessary and/or proper parties) in order that they
may get an opportunity to jnstify the stand they have taken in the
matter flowing from their refusal to exercise jurisdiction." So far as
respondent No. 4, is concerned, the only reason given for impleading
D him is that the full text of the speech of respondent No. 1 has come out
in the newspaper published by him and placed before the court and
that he was being impleaded only to prove the authenticity of the
speech, in the event of possible disclaimer of the respondent No. 1. In
other words, respondent No. 4 is only a possible witness through
whom he proposes to prove the authenticity of the speech which •
E contains the words of alleged contempt. In my opinion this cannot be
done. Assuming that a petition is the proper form of approach to the
court under rule 3(a), I have indicated earlier the proper title to such a
petition. It will have no respondents and it will be for the court to issue
notice to persons against whom a case for contempt needs examina-
tion. Viewed as a petition under rule 3(c), rule 4 envisages only that
F the petiti::m should contain the name, description and place of resi-
dence of the petitioner(s) and the persons charged. It does not con-
template any other person being made a party to it. Under rule 6 the
notice to the person charged is to be in the form appended to the rules
and the form of notice not only makes it clear that it is to be addressed
only to a -person charged with contempt of court but also contains
G certain directions appropriate only to such a person. This is naturally
so, for it is obvious that the only persons who can be respondents in
such a petition are the persons who are charged with criminal con-'"
.....
tempt. The petition, as filed here, is a petition for initiating proceed-
ings for contempt of court only against respondent No. 1. Even if the
- petitioner has any other cause C?f action against other persons, such
H persons are neither necessary nor even proper parties to the petition.
P.N. DUDA v_ p_s_ SHANKAR [RANGANATHAN, J_J 595

This is especially so because such cause of action is of a purely civil A
nature. At best the petitioner can say that he is entitled to a writ of
mandamus directing the Attorney General and Solicitor General to
discharge their statutory obligation in case they fail to do so or a writ
of certiorari to quash their decision in case they withhold unreasonably
their consent to the petitioner filing a petition. But this is a remedy to
be sought independently against these persons by a separate writ peti- B
tion. He cannot seek to get relief against the Attorney General anil
Solicitor General by a petition mixing-up his criminal charge against
respondent No. 1 and his civil grievances against the Attorney General
-~ and Solicitor General_ It is true that on the terms of Section 15(1) and
• rule 3(c), a petition for contempt will not be maintainable by a private
person without the written consent of the Attorney General or the
Solicitor General. But he cannot seek to get over this objection to the C
maintainability of a petition without such consent merely by the device
of adding them as respondents to the petition, even if he had added, in
the petition, a prayer for some relief against them. But, in this case,
even such a prayer is not there and no relief is sought against the ,
Attorney General or Solicitor General. This petition, therefore, if D
treated as a petition under rule 3(c), is not maintainable for want of
consent by the 'Attorney General and the Solicitor General and has to
be dismissed as such. That apart, as I have already pointed out, the
inclusion of respondents 2 to 4 as respondents to the petition is totally
unjustified and, even if the petition is to be taken on record as a mere
laying of information under rule 3(a}, the names of respondents 2 to 4 E

-
must be struck off from the array of parties_ I would direct
' accordingly.

8. This case itself illustrates the type of difficulties which can
-~- arise by filing such a rolled up petition. Having regard to the nature of
' ' the allegations against respondent No. 1 and the form in which the F
petition had been presented, we were of opinion that the question as to
"what action, if any, need be taken" by this Court on such a petition
called for consideration and we directed the issue of such a notice by
our order dated 10.2.1988. The terms of the order make it clear that
we wanted to hear the parties mentioned in the petition and the Addi-
tional Solicitor General on the above question_ Some aspects that arise G
for consideration are: whether the petition is properly framed; what is
the relief, if any, that can be given to the petitioner against the alleged
refusal of the Attorney General and Solicitor General to give consent
to the petitioner to file a contempt petition; and whether, in case they
considered themselves disabled from acting on the application, the
Additional Solicitor General can be called upon to exercise the said H
596 SUPREME COURT REPORTS 11988] 3 S.C.R.
A.
function. We needed assistance on these issues. If the Attorney '
A
General/Solicitor General had not been made parties, we would have
called upon them to assist us under rule 10. Since, however, they had
been added as parties, we directed notices to issue to them "as to what
action, if any, need be taken on the petition." Unfortunately, we find
that a notice was issued not only to the first respondent named in the
B petition (the alleged contemner) but also to the other "respondents"
named in the petition, in the form prescribed under the rules contain- -~
ing recitals which are appropriate only in the case of a person charged
with contempt of court, though a mention was specifically made that
th~ contempt charge was only against respondent No. 1. The issue of
notices in the prescribed form to the other respondents was unjusti-
fied. This type of difficulty arose only because the petition joined, as
c respondents, persons who are totally unnecessary for deciding the -,
issue of contempt. There was no question of any 'contempt' notice
being issued to the Attorney General/Solicitor General as there was
not even a suggestion of any such allegation against them and no other
relief had also been sought against them. I think that, in the circum-
D stances, notices should not have been issued to them in the form in
which they were issued.

9. I may next consider the question whether even if the
petitioner was particular about his right to file a petition under rule
3(c), he can have any recourse against the Attorney General and the
E Solicitor General in case they refuse their consent or, as alleged in this
case, refuse to deal with the petitioner's application. One possible
view is that the discretion to be exercised by the Attorney General/
Solicitor General is a quasi-judicial discretion and that its exercise is
subject to judicial review by this court. In this connection, reference
-
i

was made to the judgment of this Court in Conscientious Group v.
F Mohammed Yunus and Ors., J.T. 1987(2) 377. In that case, the
petitioner had withdrawn a contempt petition filed by it as the
Attorney General had expressed his inability to exercise his juris-
diction for reasons stated by him. Subsequently, the petitioner on
learning that it could get the consent of the Solicitor General, sought
to have the earlier order ;ecalled. Bhagwati C.J. observed:
G
" ..... we would make it clear that it would be open to the
petitioner to approach the Solicitor General and to revive ;"-
the petition after obtaining the consent of the Solicitor
General under Rule 3(c). Since this remedy is available to
the petitioner for reviving the petition for contempt, we do
H not propose to recall the order permitting withdrawal of
P.N. DUDA v. P.S. SHANKAR (RANGANATHAN, J.J 597

the petition. The petition can be revived by the petitioner
A
after obtaining the consent of the Solicitor General. We
may point out that the petitioner will not be without remedy,
if the Solicitor General refuses his consent on any irrelevant
ground."

The matter was then referred to the learned Solicitor General, B
who declined consent stating that it would not be in public interest to
give his consent. The court then considered the reasons given by the
learned Solicitor General and came to the conclusion that the ground
stated by him for declining the consent could not be said to be irrele-
vant in the eye of the law or characterised as arbitrary, illegal or
unreasonable. The petition for contempt was, threfore, dismissed.
From these circumstances, it is sought to be suggested that the action C
of the Attorney General/Solicitor General is subject to judicial review
by this Court.

,\ 10. In my opinion this is not the necessary conclusion that
follows from the observations extracted above. Our attention has been D
" drawn by Sri Ganguly, appearing for the learned Solicitor General, to
the decision in Rajagopal Rao v. Murtza Mutjahdi, [1974) 1 Andhra
Law Times, 170 and N. Venkataramanappa v. D.K. Naikar, A.LR.
1978 Kar. 57, that the grant or refusal of consent is not justiciable. My
learned brother has not accepted the correctness of these decisions on
the ground that the statute confers a duty and discretion on these law E

- officers and that their action cannot be beyond judicial review as no
person can be above law. I am, however, inclined to think there is
something to be said in favour of the view taken by the two High
Courts for two reasons.

11. In the first place the role of the Attorney General/Solicitor F
General is more akin to that of an amicus curiae to assist the court in
•' an administrative matter rather than a quasi-judicial role determining
a Lis involving rights of a member of the public vis-a-vis an alleged
contemner. As pointed out by the Supreme Court in S. C. Sarkar v.
V.C. Misra, [1981) 2 S.C.R. 331, there are difficulties in the Court
making frequent use of the suo motu power for punishing persons G
). guilty of contempt. The Attorney General offers his aid and assistance
in two ways. On the one hand, he moves the Court for action when he
comes across cases where he thinks there is necessity to vindicate the
dignity and reputation of the Court. On the other, he helps in screen-
ing complaints from the public to safeguard the valuable time of the
Court. The observations of Lord Reid and Lord Cross in th" H
598 SUPREME COURT REPORTS 11988] 3 S.C.R.

Thalidomide case: A.G. v. Times Newspapers, 11972] A.C. 277, of the
A
House of Lords, in a different context, in Gouriet v. Union of Post
Office Workers, I 1978] A.C. 435 and of Lord Denning and Lawton
. LJ, in the same case in the Court of Appeal {1977-1 Q.B. 729) bring
but this aspect of the Attorney General's functions.

B 12. Secondly, if we analyse the types of action which the
Attorney General/Solicitor General may take on an application made
to him, the position will be this. Firstly, he may grant permission in
which case no further question will arise. I do not think it will be open
to any other person to come to the court with a prayer that the
Attorney General/Solicitor General ought not to have given his con-
sent. i'or, it would always be open to the Court, in case they find no
c reason to initiate action, to dismiss the petition. Secondly, it is possible
that the Attorney General/Solicitor General may not be able to dis-
charge his statutory function in a particular case for one reason or
other. This was what happened in the case of Mohammed Yunus cited
earlier. In that case it was only the Attorney General who was unable
D to discharge his functions under Section 15 and the petitioner could I
move the Solicitor General, who declined consent. But there might be (
cases in which both the Attorney General and the Solicitor General
are not in a position to take a decision on the application made to them
by a private party. Thirdly, both of them may refuse their consent. In
the latter two cases, I am unable to see what purpose would be served
E by the Court spending its time to find out whether the Attorney
General/Solicitor General should have given a decison one way or the
other. For, the petitioner is not without remedy. It is open to him
always to place the information in his possession before the Court and
request the Court to take action. (see, Lord Cross in A.G. v. Times
-..
'
Newspaper, 11974] A.C. 277 at p. 321. Bhagwati, C.J. could have
F meant this when he said that, if the consent of the Solicitor General
was withheld on irrelevant grounds, the petitioner was not without
remedy.

13. the petitioner has submitted that the Attorney General and
Solicitor General acted unreasonably in declining to act in the present
G case. Though, as indicated earlier, it wiII not be a fruitful exercise to
review such decision, particularly when a request for suo motu action
under rule 3(a) has been made, the point having been raised, I shall
consider how valid this complaint is. What the petitioner here did was
that, instead of merely placing the information with him before the
Attorney General/Solicitor General and seeking their consent to his
H filing a petition before the Court, the petitioner wrote a letter contain-
P.N. DUDA v. P.S. SHANK.AR [RANGANATHAN, J.[ 599

ing a lot of other irrelevant matter. In particular, in paragraph 7, he
A
suggested that the Attorney General/Solicitor General might feel
embrassed in giving consent for the prosecution as the person sought
to be charged happened to be the Minister "who effectively hires and
fires law officers and for all purposes at whose pleasure they hold their
office." He also expressed his apprehensions about the possible
outcome of his request. In other words, the petitioner, while purport- B
ing to seek the consent of the Attorney General/Solicitor General,
simultaneously expressed his lack of confidence in their judgment and
their ability to discharge their duties objectively and impartially. It is
not surprising that, in this situation, the learned Attorney General/
Solicitor General decided not to exercise their statutory powers at all
one way or the other. The learned Attorney General has placed before
us a statement explaining his stand in the matter. He has pointed out C
that two occasions had arisen in the past when, for compelling reasons,
he could not deal with an application for consent filed before him. So
far as the present case is concerned, he has stated:

"The Attorney General has declined to exercise his func- D
tions under Section 15 of the Contempt of the Courts Act in
view of the allegations of lack of impartiality and independ-
ence. These allegations contain a reflection of bias and
foreclosure on the part of the Atorney Genera. The
Attorney General declined to investigate the matter since
the allegation of bias should normally disentitle him from E
proceeding further with the matter. The Attorney General
has followed this course consistently."

From the above narration, it is clear that the Attorney General/

-+· Solicitor General acted rightly and in the best traditions of their office
by declining to deal with the petitioner's request and leaving it to the
petitioner to follow such other course as he considered advisable. The
F

petitioner had cast aspersions agaist both the Law Officers doubting
their ability act objectively and thus stultified by his own conduct this
course indicated by the statute.

14. The last question that remains to be touched upon is G
whether, in a case where neither the Attorney General nor the
Solicitor General is in a position to consider a request under Section
15(1)(c), it is open to the petitioner to seek the consent of some· other
law officer such as the Additional Solicitor General. Apart from the
fact that, in the present case, the petitioner would have had the same
criticism against the Additional Solicitor General as he had against the H
600 SUPREME COURT REPORTS [1988] 3 S.C.R.

A Attorney General/Solicitor General, the clear answer to the question
appears to be that it is not open to him to seek such consent. Section 15
is quite clear that the written consent of only those officers as have
been specifically authorised by the section would be taken note of for
entertaining a petition under the section. But this does not, in any way,
deprive the petitioner of his remedy as he can come to Court, as
B indeed he has done, requesting the court to take suo motu action.

15. For purposes of convenience, I may sum up my conclusions.
They are:

(a) This petition, if treated as one filed under Section 15(1) read
c with rule 3(a) is not in proper form and, if treated as one filed
under rules 3(b) and 3( c), is not maintainable as it is not filed by
the Attorney General/Solicitor General or by any person with
his consent.

(b) In either event the petitioner should not have added to the
D petition respondents other than the person who, according to the
petitioner, is guilty of contempt of court and so their names
should be deleted from the array of parties.

(c) In case the Attorney General/Solicitor General refuse con-
sent or decline to act, their decision is not judicially reviewable
E and petitioner's remedy is to approach the Court for action
under rule 3(a).

(d) In this case, the Attorney General/Solicitor General acted
properly in declining to deal with the petitioner's application
either way; and
F
(e) Considering the petition as nothing more than information
under rule 3(a) on which this Court may or may not take suo
motu action and, after hearing oounsel for the alleged
contemn er, we think there is no need to initiate proceedings
against respondent No. 1 for contempt of court.
G
I, therefore, agree that the petition should be dismissed.

S.L. Petition dismissed.