VITUSAH OBEROI AND ORS.versusCOURT OF ITS OWN MOTION

                         (20 I 7] 1 S.C.R. 25



                 VITUSAH OBEROI AND ORS.                                 A
                                  V•

                . COUR! OF ITS OWN MOTION
                 (Criminal Appeal No. 1234 of2007)
                        JANUARY 02, 2017                                 B

   [T. S. THAKUR, C.J.I. AND A. M. KHANWILKAR, J.]
       Contempt of Courts Act, 1971: Contempt of Supreme Court -
P-ower of High Court to initiate contempt proceedings - Held: There
is nothing in the Contempt of Courts Act, 1971 or in Art.215 of the      c
Constitution which can be said to empower the High Court to initiate
proceedings suo-motu or otherwise for the contempt of a superior
Court like the .Supreme Court of India - As a matter of fact, the
Supreme Court under Art.129 and High Court under Art.215 of the
Constitution are both declared to be Courts of Record - The power
to punishfor co111e111pt vested in a Court of Record under Art.215       D
does not, however, extendto punishing for the contempt of a superior
court - Such a power has never been recognised as an attribute of
a court of record nor has the same been specifically conferred upon
the High Courts under Art.215 - The power to punish under Art.215
is limited to the contempt of the High Courts or courts subordinate
                                                                         E
 to the High Court - If Supreme Court does not, despite the
 availability of the power vested in it, invoke the same to punish for
 its contempt, th.ere is no question of a Court subordinate to the
 Supreme Court doing so - Constitution of India - Art.215.
      Allowing the appeals, the Conrt
                                                                         F
      HELD: 1. The genesis of the suo motu proceedings initiated
by the High Court lay in the publication of the articles, stories
and write ups questioning the propriety of certain orders passed
by a two-Jndge bench of the Supreme Court·of which Justice
Y.K.S. was the Presiding Judge. The publications were actually
seen as contemptuo·us vis-a-vis the Supreme Court. No part of            G
the publications referred to the High Court of Delhi or any other
High Court for that matter. The publications did not refer to any
Judge or any order of any Court subordinate to the High .Court
of Delhi. There is nothing in the Contempt of Courts Act, 1971
or in Article 215 of the Constitution which can be said to empower       H
                                  25
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26 .            SUPREME COURT REPORTS                      (2017] 1 S.C.R.



A      the High Court to initiate proceedings suo-motu or otherwise for
       the contempt of a superior Court like the Supreme Court of India.
       As a matter of fact, the Supreme Court under Article 129 and
       High Court under Article 215 of the Constitution are both
       declared to be Courts of Record. One of the recognised attributes
       of a court of record is the power to punish for its contempt aud
B
       the contempt of courts subordinate to it. Articles 129 and 215,
       while declaring the Supreme Court and the High Courts as Courts
       of Record, recognise the power vested in them to punish for their
       own contempt. The use of the expression "including" in the said
       provisions is explanatory in character. It signifies that the Supreme
c      Court and the High Courts shall, as Courts of Records, exercise
       all such powers as are otherwise available to them including the
       power to punish.for their own contempt. [Paras 7, 10) (29-H; 30-
       C; 31-B-D)
             2. The power to punish for contempt vested in a Court of
D      Record under Article 215 does not, however, extend to punishing
       for the contempt of a superior court. Such a power has never
       been recognised as an attribute of a court of record nor has the
       same been specifically conferred upon the High Courts under
       Article 215. The power to punish under Article 215 is limited io
       the contempt of the High Court or courts subordinate to the High
E      Court. There was no way the High Court could justify invoking
       that power to punish for the contempt of a superior court. That
       is particularly so when the superior court's power to punish for
       its contempt has been in no uncertain terms recognised by Article
       129 of the Constitution. The availability of the power under Article
F      129 and its plenitude is yet another reason why Article 215 could
       never have been intended to empower the High Courts to punish
       for the contempt of the Supreme Court. [Para 11) [33-A-C)
             Delhi Judicial Service As~ociation vs.. State of Gujarat
             (1991) 3 SCR 936 : (1991) 4 SCC 406 - referred to.
G                             Case Law Reference
       [1991] 3 SCR 936                referred to                Para 10
             CRJMJNAL APPELLATE JURJSDICTION : Criminal Appeal
       No. 1234 of2007.
H            From the Judgment and Order dated 11.09.2007 of the High Court
    VITUSAH OBEROI AND ORS. v. COURT OF ITS OWN                                  27
                     MOTION

of Delhi in Contempt Case (Criminal) No. 07 of2007.                              A
                                 WITH
      Crl. A. No. 1299 of2007
     Neeraj Kishan Kaul, ASG., T. R. Andhyarujina, Sr. Adv. (A.C.),
Bhuvan Mishra (For Mukul Rohatgi, AG), Advs. for the Appellant.
                                                                                 B
    Shanti Bhushan, Sr. Adv., Prashant Bhushan, Rohit Kumar Singh,
Ambhoj Kumar Sinha, Advs. for the Respondent.
      T~e Judgment of the Court was delivered by

       T. S. THAKUR, C.J.I. I. In these appeals, the appellants call
in question the correctness of an order dated 11 '"September, 2'007 passed       c
by a Division Bench of the High Court of Delhi whereby the appellants
have been found guilty of contempt and directed to remain present in
person before the High Court for being heard on the quantum of sentence
to be awarded to them. Facts n~cessary for appreciating the challenge
mounted by the appellants may be summarized as under:                             D
        2. Appellants No.1 and 2 are the Editor and City Editor
respectively of Mid Day, an English Daily Newspaper, with a large
circulation in the NationaJC~pital Region. Appellant No.3 happens to be
the Printer and Publisherofthe papers while appellant No.4 is a Caitoonist
working for the said paper. The genesis of the suo motu contempt
                                                                                  E
proceedings initiated by the High Court of Delhi lies in a story that appeared
 in 'Mid Day' in its issue dated 2"' May, 2007 under the title "Injustice".
The substance of the publication brought to light the alleged misuse'·of
the official residence of Justice Sabharwal who demitted office as Chief
Justice of India on 13'" January, 2007, by the same being shown as the
registered office of three companies promoted by Justice Sabharwal's              F
 sons. A second story published on 18'" May, 2007 in Mid Day pointed
 out that Justice Sabharwal's son had entered into a partnership with
 shopping malls and commercial complex developers just before Justice
 Sabharwal passed orders for sealing of commercial establishments
 running in residential areas in different parts of Delhi. This, according to
                                                                                  G
 the story, benefitted the partnership business of Justice Sabharwal's sons.
 On 19'" May, 2007 came a third story that quoted some senior lawyer's
 saying that if the facts about Justice Sabharwal's sons' partnership
 business benefittin'g from the orders of Justice Sabharwal's Bench were
 true; then Justice Sabharwal should not have heard the case. The paper
 also carried in the same issue a cartoon by Mohd. lrfan Khan, appellant          H
28             SUPREME COURT REPORTS                         (2017] I S.C.R.



A    NoA showing as if Justice Sabharwal's family had benefitted from the
     orders passed by Justice Sabharwal's Bench.
             3. It was ,in the above backdrop that Shri R.'K. Anand, an advocate
      practicing in Delhi·High Court appears to have placed a copy of the
      newspaper dated 18"' May, 2007 before a Division Bench of the High
B     Court of Delhi on 21" May, 2007 to draw the attention of the Court
      about the article published in the said paper maligning the former Chief'
      Justice of India and tending to lower the image of the judiciary in the
      eyes of the common man, Prima facie satisfied that the news item was
      objectionable and tended to lower the image of judiciary in the .eyes of
      the common man, the High Court initiated suo-1110111 contempt proceedings
c     and issueo show cause notices to appellants No: I to 3. On 25" May,
      2007 Shri Anand appears to have filed another copy of Mid Day
      newspaper dated I 9'h May, 2007 before the High Court which carried
     the cartoon drawn by the appellant No.4, the paper's cartoonist. The
      High Court found the same also to be objectionable and issued notice
D     even to appellant No.4 to show cause why contempt proceedings may
      not be initiated against him.
           4, In response to the notices served upon them, the appellants
    filed their objections supported by affidavits. In the affidavit filed by
    appellant No. I-Editor of Mid-day it was, inter alia, stated !hat all the
E   facts published in the paper were supported by unimpeachable documents
    and were true. A supplementary affidavit filaj on behalfofthe appellant
    No, I gave some more details about a company promoted by Justice
    Sabharwal 's sons and the documents relevant thereto. An affidavit sworn
    by appellant No.4, the caitoonist was also filed explaining his position.
    This was followed by additional affidavits filed by the appellants on 21"
F August, 2007 in which the appellants tried to justify their publications on
    the ground that the said publications were intended to bring to light an
    impropriety committed only by Justice Y.K. Sabharwal and that the same
    was not intended either to malign or undermine the judkiary in this country ·
    or any other Judge in the Supreme Court of India or any other Court for
G . that matter. The affidavits in particular stated:.
            "The Article which was published was intended to bring to
            light such impropriety by Mr. Y.K. Sabharwal and was not
            intended at all to undermine or malign the Judiciary of India
            or any other Judge of the Hon 'ble Supreme Court of India or
H
            of may other court in India. If our articles created any
     VITUSAH OBEROI AND ORS. v. COURT OF ITS OWN                                  29
             MOTION [T.S. THAKUR, CJ.I.]

      impression on anyone that we were or were intending to malign               A
      the judiciary or any other Judge, we sincerely apologise for
      the same."
      I most respectfully submit that I have the utmost regard and
      respect for the majesty of law and the Court of law. The
      Article in question published by Mid Day was not intended to
      undermine the authority of law or lowir the image ofjudiciary
      or with any intention of interfering with the administration of
      Justice. "
     · 5. The explanation offered by the appellants notwithstanding the
High Court has by the order impugned in these appeals found the                   c
appellants guilty of contempt and directed them to remain present in
person for being heard on the question of quantum of sentence that may
be awarded to them. The present appeal assails the correctness of the
said order.
       6. Appearing for the appellants M/s. Shanti Bhushan and Prashant           D
Bhnshan raised a short point in support of the appeal. They contended
that the High Court could under Article 215 of the Constitution oflndia
no doubt initiate proceedings and punish for its own contempt, but it
could not, according to the learned counsel, initiate proceedings or punish
for the contempt of the Supreme Court. It was urged that even under
Section l 0 of the Contempt of Courts Act, 1971; the High Court could             E
punish only for its own contempt or the contempt of a Court subordinate
to it. There was no provision, argued the learned counsel, either in the
Constitution of India or in the Contempt of Courts Act, 1971 that
empowered the High Court to take cognizance of the contempt of a
superior Court like the Supreme Court of India. Inasmuch as the High              F.
Court had failed to appreciate the scope ·of"the powers of contempt
exercisable by it, it had fallen in palpable error that required to be
corrected. It was contended that while the appellants had pleaded truth
as a defense to the charge of contempt yet regardless whether the
publication could be justified on the ground of truth under Section 30(b)
of the Act, the impugned order passed by the High Court was liable to             G
be set aside.
      7. The genesis of the suo motu proceedings initiated by the
High Court, as noticed earlier, lay in the publication of the articles, stories
and write ups questioning the propriety of certain orders passed by a
two-Judge bench of this Court of which Justice Y.K. Sabharwal was the             H
30            SUPREME CQURT REPORTS                          (2017] 1 S.C.R.


A    Presiding Judge. The substance of the offending publication was that
     Justice Sabharwal had by reason of the orders passed by the bench
     benefitted the partnership business of his sons in real estate development
     in and around Delhi. The text and the context of the said publications
     was focused entirely on the question whether Justice Sabharwal should
     have heard the matters and passed sealing orders of commercial
B
     properties in residential areas of Delhi which orders were perceived to
     be beneficial to the real estate business of his sons. What is, therefore,
     undeniable is that the publications were actually seen as contemptuous
     vis-a-vis the Supreme Court. No part of the publications referred to the
     High Court of Delhi or any other High Court for that matter. The
c    publications did not refer to any Judge or any order of any Court
     subordinate to the High Court of Delhi. Initiation of proceedings by the
     High Court in such circumstances was, it is evident, meant to vindicate
     the Supreme Court more than the High Court who initiated those
     proceedings. The question is whether the High Cowrt could do so. The
     appellants argued and, in our opinion, rightly so that the Supreme Court
D
     was and is competent to punish for contempt of itself. This is evident
     from Article l 29 of the Constitution which reads as under:
            "Article 129
           129. Supreme Court to be a court of record: The Supreme
E          Court shall be a court of record and shall have all the
           powers of such a court including the power to punish for
           contempt of itself"
           8. So also Article 215 of the Constitution empowers the High
     Court to punish for its contempt. That provision reads:
F           "Article 215
            High Courts to be courts of record: Every High Court shall
            be a court of record and shall have all the powers of such a
            court including the power to punish for contempt of itself"
           9. The provisions of Section 10 of the Contempt of Courts Act,
G
     1971 also empower the High Court to punish for its own contempt or the
     contempt of Courts subordinate to it. Section 10 reads:
            " 10. Power ofHigh Court to punish contempts ofsubordinate
           courts.-Every High Court shall have and exercise the same
           iurisdiction, powers and authority, in accordance with the
H
      VITUSAH OBEROI AND ORS. v. COURT OF ITS OWN                              31
              MOTION [T. S. THAKUR, CJ.I.]

       same procedure and practice, in respect of c0t1tempt of courts          A
       subordinate to it as it has and exercises in respect of contempts
       of itself:
       Provided that no High Court shall take cognizance of a
       contempt alleged to have been committed in respect of a court
       subordinate to it where such contempt is an offence punishable
       under the Indian Penal Code (45 of 1860). "
         10. There is, from a plain reading of the above, nothing in the
 Contempt of Courts Act, 1971 or in Article 215 of the Constitution which
 can be said to empower the High Court to initiate proceedings suo-motu
 or otherwise for the contempt of a superior Court like the Supreme            c
 Court oflndia. As a matterof fact, the Supreme Court under Article 129
 and High Court under Article 215 of the Constitution are both declared
-~o be Courts of Record. One of the recognised attributes of a court of
 record is the power to punish for its contempt and the contempt of courts
 subordinate to it. That is precisely why Articles 129 and 215, while
 declaring the Supreme Court and the High Courts as Courts of Record,          D
 recognise the power vested in them to punish for their own contempt.
 The use.of the expression "including" in the said provisions is explanatory
 in character. It signifies that the Supreme Court and the High Courts
 shall, as Courts of Records, exercise all such powers as are otherwise
 available to them including the power to punish fortheirown contempt.         E
 Whether or not the power to punish for contempt of a subordinate court
 was an attribute of a court of record fell for consideration of this Court
 in De/Iii Judicial Service Association vs. State of Gujarat (1991) 4
 SCC 406. The argument there was that the Supreme Court could not
 initiate'contempt proceedings based on an incident that involved a
 subordinate court like a Chief Judicial Magistrate working in the State of    F
 Gujarat. That contention was· examined and rejected by this Court. It
 was held that the language employed in Article 129 indicated that the
 Supreme Court is a Court of Record and was entitled not only to punish
 for its own contempt but to do all that which is within the powers of a
 Court of Record. This Court held that since the Constitution has designed     G
 the Supreme Court as a Court of Record, Article 129 thereof recognises
 the existing inherent power of a Court of Record in its full plenitude
 including the power to punish for its own contempt and the contempt of
 its subordinate. The Court said:
        "29. Article 129 declares the Supreme_ Court a court of record
                                                                               H
32      SUPREME CO!JRT REPORTS                         [2017] I S.C.R.


A    and it ft1rther provides that the Supre111e Court shall have all
     the powers of such a court including the power to punish for
     contempt of itself (e111p~asis supplied). The expression used
     in Article 129 is not restrictive instead it is extensive in nature.
     If the Framers of the Constitution intended that the Supreme
     Court shall have power to punish for conte111pt of itself only,
B
     there was no necessity for inserting the expression "including
     the power to punish for contempt of itself" The Article confers
     power on the Supreme Court to punish for contempt of itself
     and in addition, it confers some additional power relating to
     contempt as would appear from the expression "including."
c    The expression "including" has been interpreted by courts,
     to extend and widen the scope of power. The plain language
     of the Article 129 clearly indicates that this Court as a court
     of record has power to punish for contempt of itself and also
     something elsewhich could fall within the inherent jurisdiction
     of a court of record. Jn inte1preting the Constitution, it is not
D
     permissible to adopt a construction which would render any
     expression superfluous or redundant. The courts ought not
     accept any such construction. While construing Article 129,
     it is not permissible to ignore the significance and impact of
     the inclusive power conferred on the Supreme Court. Since,
E    the Supre111e Court is designed by the Constitution as a court
     of record and as the Founding Fathers were aware that a
     superior court of record had inherent power to indict a person
     for the contempt of itself as well as of courts inferior to it, the
     expression "including" was deliberately inserted in the Article.
     Article 129 recognised the existing inherent power of a court
F
     of record in its full plenitude including the power to punish
     for the conte111pt of inferior courts. If Article 129 is susceptible
     to two interpretations, we would prefer to accept the
      interpretation which would preserve the inherent jurisdiction
     of this Court being the superior court of record, to safeguard
G    and protect the subordinate judiciary, which forms the very
      back bone of administration of justice. The subordinate
      courts administer justice at the grass root level, their protection
      is necessary to preserve the confidence of people in the
      efficacy of Courts and to ensure unsullied flow of justice at
      its base level. "
H
     VITUSAH OBERO! AND ORS. v. COURT OF ITS OWN                             33
             MOTION [T.S. THAKUR, C.J.l.]

       11. The power to punish for contempt vested in a Court of Record      A
under Article 215 does not, however, extend to punishing for the contempt
of a superior court. Such a power has never been recognised as an
attribute ofa court ofrecord nor has the same been specifically conferred
upon the High Courts under Article 215. A priori ifthe power to punish
under Article 215 is limited to the contempt of the High Court or courts
                                                                             B
subordinate to the High Court as appears to us to be the position, there
was no way the High Court could justify invoking that power to punish
for the contempt of a superior court. That is particularly so when the
superior court's power to punish for its contempt has been in no uncertain
terms recognised by Article 129 of the Constitution. The availability of
the power under Article 129 and its plenitude is yet another reason why      c
Article 215 could never have been intended to empower the High Courts
to punish for the contempt of the Supreme Court. The logic is simple. If
Supreme Court does not, despite the availability of the power vested in
it, invoke the same to punish for its contempt, there is no question of a
Court subordinate to the Supreme Court doing so. Viewed from any
                                                                             D
angle, the order passed by the High Court appears to us to be without
jurisdiction, hence, liable to be set aside.
       12. We, accordi~1gly, allow these appeals, set aside the judgment
of the High Court and discharge the rule issued by the High Court. The
parties to bear their own cost.
                                                                             E
Devika Gujral                                             Appeals allowed.