Vs. Pramod Kumar Gupta  INSC 104 (22 March 1990)
K.J. (J) Shetty, K.J. (J) Sahai, R.M. (J)
1990 AIR 1737 1990 SCR (2) 110 1990 SCC (2) 533 JT 1990 (1) 545 1990 SCALE
and Procedure: Judicial restraint--Need for--High Court Judge making derogatory
remarks criticising counsel, parties or witnesses--Such remark not to be made
unless absolutely necessary for deciding the case.
allowing a writ petition, one of the Judges deliv- ered the main Judgment
invalidating the decision of the Government on the ground that it violated
Article 14 of the Constitution. The other Judge delivered a separate, but
concurring opinion which contained highly disparaging re- marks attributing mala
fides and underhand dealing on the part of the State Government. Several
appeals were filed against the said decision before this Court. This Court
allowed the appeals and observed that the strictures passed in the concurring
Judgment were totally unjustified and unwarranted. State of M.P. v. Nandial Jaiswal & Ors.,  1 SCR 1.
an Advocate who had no connection whatsoever with the litigation filed a review
petition before the High Court. It was alleged that the State Government
committed fraud and procured the judgment from this Court. The matter was
listed before a Division Bench on 29th October 1988, and one of the Judges dismissed
the review petition as not maintainable. Meanwhile, another application for
review was filed stating that the Vidhan Sabha proceedings would lend credence
to the claim that the State Government had prac- tised fraud on the Court. On
6th February, 1989 the other Judge,(who had passed strictures against the
Government in the Writ Petition) dismissed the review position, for want of
jurisdiction, with an observation that had the appellant acted bona fide in
briefing the then Chief Minister, the fraud on the Court, as also the
misleading press statement by the then Chief Minister, would have been avoided.
It was further observed that the appellant did not act befitting the status of
the high office of the Advocate General and that he did not have the courage to
face the situation in the Court later.
this Court. the appellant contended that he had no 111 opportunity to meet the
allegations in the review petitions.
also contended that earlier he entered appearance as Advocate General on behalf
of the State, and that when the review petitions were heard neither he was the
Advocate General nor did he wish to enter appearance since he thought that the
review petitions deserved to be dismissed as there were no valid grounds.
the appeal, this Court,
1. Judicial restraint and discipline are as neces- sary to the orderly
administration of justice as they are to the effectiveness of the army. The
duty of restraint, this humility of function should be a constant theme of our
judges. This quality in decision making is as much necessary for judges to
command respect as to protect the independence of the judiciary..Judicial
restraint in this regard might better be called judicial respect; that is,
respect by the judiciary. Respect to those who come before the Court as well to
other co-ordinate branches of the State, the Execu- tive and the Legislature.
There must be mutual respect. When these qualities fail or when litigants and
public believe that the judge has failed in these qualities, it will be neither
good for the judge nor for the judicial process. [117C-E]
Judges Bench is a seat of power. Not only do judges have power to make binding
decisions, their decisions legitimate the use of power by other officials. The
Judges have the absolute and unchallengeable control of the Court domain. But
they cannot misuse their authority by intemper- ate comments, undignified
banter or scathing criticism of counsel, parties or witnesses. The Court has
the inherent power to act freely upon its own conviction on any matter coming
before it for adjudication but it is a general prin- ciple of the highest
importance to the proper administration of justice that derogatory remarks
ought not to be made against persons or authorities whose conduct comes into
consideration unless it is absolutely necessary for the decision of the case to
animadvert on their conduct. [117F- G] R.K. Lakshmanan v.A.K. Srinivasan,
 1 SCR 204 and Niranjan Patnaik v. Sashibhushan Kar,  2 SCC 567,
doubt each Judge is independent to form an opinion of his own in deciding cases
or in any phase of the deci- sional function. But the facts of the present case
against the background of the views expressed by this Court apropos to the
earlier strictures against the Government, should have warned the Judge no
matter how clear he was in his mind, 112 not to criticise the appellant. The
avoidance of even the appearance of bitterness, so important in a Judge,
required him not to cast aspersions on the professional conduct of the
appellant, especially when he held that the High Court had no jurisdiction to
entertain the review petition. The observations made are not only without
jurisdiction, but are also wholly and utterly unjustified and unwarranted, and
hence expunged. [116C-1); 118B] The Nature of the Judicial Process by Benjamin
N. Cardo- zo, p. 168-169; Some Observations of Felix Frankfurter, J., on the
Nature of Judicial Process of Supreme Court Litiga- tion, 98 Proceedings AM
Phil Society 233 (1954) and The Judiciary and Constitutional Politics-Views
from the Bench by Mark W. Cannon and David M.O. 's Brien, p. 27, referred to.
APPELLATE JURISDICTION: Civil Appeal No. 1537 of 1990 From the Judgment and
Order dated 6.2.1989 of the Madhya Pradesh High Court in M.C.C. No. 213 of
P.P. Rao, Sushil Kumar Jain, Mrs. Pratibha Jain and Sudhanshu Alreya for the
R.K. Gupta, K.K. Gupta, Dr. A.M. Singhvi, Ashok Mathur and N. Waziri for the
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special leave
B.M. Lal, J. of the Madhya Pradesh High Court while dismissing an apparently
unsustainable review petition has, however, made certain derogatory remarks
against Mr. A.M. Mathur, senior Advocate and also the Ex-Advocate General of
the State. Mr. Mathur has appealed to this Court for setting aside that order.
matter pertains to a case which has come to be known as M.P. Liquor case. It
was with regard to the grant for construction of new distillaries by the policy
decision of the State Government of Madhya Pradesh. That policy decision was
challenged before the High Court by way of writ petitions. The Writ Petitions
were allowed by the Division Bench consisting of the Acting Chief Justice Mr.
J.S. Verma (as he then was) and Justice B.M. Lal. In those writ peti- tions,
113 Mr. Mathur as Advocate-General appeared and argued for the State
Government. Learned Acting Chief Justice delivered the main judgment in the
writ petitions invalidating the deci- sion of the Government on the ground that
it violated Arti- cle 14 of the Constitution. Justice B.M. Lal delivered a
separate concurring opinion in which he made highly dispar- aging remarks
attributing mala fides and underhand dealing to the State Government. Against
the judgment of the High Court, several appeals including one by the State of Madhya Pradesh were filed before this Court. The
appeal preferred by the State was argued by the then Attorney General of India
assisted by the appellant. This Court. allowed the appeals and set aside the
judgment of the High Court. The decision of this Court has since been reported
in 1987 1 SCR 1 (State of M.P. v. Nandlal
Jaiswal & Ors.,).
CJ., speaking for the Court in that case while expressing strong disapproval of
the strictures made by B.M. Lal, J. observed (at p. 66):
may observe in conclusion that Judges should not use strong and carping
language while criticising the conduct of parties of their witnesses. They must
act with sobriety, moderation and restraint. They must have the humility to recognise
that they are not infallible and any harsh and disparaging strictures passed by
them against any party may be mistaken and unjustified and if so, they may do
consider- able harm and mischief and result in injustice. Here, in the present
case, the observations made and strictures passed by B.M. Lal, J. were totally
unjustified and unwarranted and they ought not to have been made." On or
about 3rd June 1988 i.e. after a delay of 738 days Mr. Promod
Kumar Gupta, Advocate who had no connection whatsoev- er with the earlier
litigation in the writ petitions or appeals, filed a review petition before the
High Court. He was represented by Mr. S. Dixit, Advocate. In the review
petition it was inter alia alleged that the State Government by committing
fraud has procured the judgment from the Supreme Court, thereby vitiating the
most solemn proceedings of the Apex Court of the Nation. He has also filed an appli-
cation No. 3858 of 1988 for interim findings on the question of fraud.
On 29 October, 1988, the matter was listed for
admission before a Bench consisting of learned Judges Mr. C.P. Sen and Mr. B.M.
Lal. After arguments, C.P. Sen, J., seems to have dictated his order in the 114
open Court dismissing the review petition. He expressed the view that the
petitioner has no locus standi to file the petition and the economically
well-to-do parties to the writ petitions who lost their case before this Court
did not choose to file any review petition. He also held that the petition for
review was not maintainable before the High Court since the decision of the
High Court was reversed by this Court. The petition was also held to be
hopelessly barred by limitation and there was no sufficient cause for condoning
the inordinate delay.
J. did not pass any order on 29 October, 1988.
pronounced his order on 6th
February 1989. In this
inter- regnum there was another application from Mr. Gupta. On 25 January 1989, he filed an application in the
aforesaid review petition requesting the Court to take judicial notice of some
extract of the Vidhan Sabha proceedings and to pass appropriate strictures
against the appellant. According to him, that extract of the proceedings of the
Vidhan Sabha would lend credence to his contention that the State has practised
fraud on the Court. That application was not served on the appellant nor the
Court gave him any opportu- nity to file his counter. It may be mentioned that
Mr. Mathur has tendered his resignation as Advocate General on 25 January 1989. On 6 February 1989, the said
application was taken on record along with the documents annexed there- by. On
the same day B.M. Lal, J. pronounced his order dis- missing the review
relevant portion of that order is as under:
briefing about the application for amendment of the return to the Chief
Minister Shri Arjun Singh, had Shri A.M. Matbut, Advocate-General acted in bona
fide and honest manner, the fraud on the Court would have been avoided. So also
the misleading press statement by the Chief Minister to the Blitz would have
been on true facts and this situation would not have arisen; putting the Courts
in an embarrassing position." Continued:
is the moral duty of a lawyer, much less the Advocate General, to act
faithfully for the cause of his client and to furnish information about the
Court's proceedings cor- rectly. In the past the chair of Advocate General was
adorned by glorious and eminent lawyers who never showed any sycophancy and
never suffered from mosaifi. As such, the 115 action on the part of the
Advocate General, was not befit- ting to the status of the High Office."
appears that this was the reason that Shri A.M. Mathur avoided filing reply to
the petition and skilfully succeeded in his attempt to abstain himself from the
case on28.8. 1988, presumably, he had no courage to face the situation."
Finally, rounded off the conclusion:
far as exercise of jurisdiction of this Court is con- cerned, observing the
judicial discipline envisaged under Article 141 of the Constitution and has
been merged in the decision of the Supreme Court particularly when the decision
of this Court in State of Madhya Pradesh v. Nandial Jaiswal, case, it is for
the petitioner, if he is so advised, to vindicate his grievances before the
counsel further pointed out that one of the distiller's application for
modification of the order is sub judice before the Apex Court. As such, in view
of the observations made in A.R. Antulay's, case  SCC II 602 the
petitioner, if so advised, may approach the Apex Court for getting
redress." From the foregoing order it will be seen that the learned Judge
seems to have formed an opinion that the appellant did not act honestly and
bona fide in briefing the then Chief Minister Mr. Arjun Singh and if he had
acted bona fide and in honest manner, the fraud on the Court would have been
avoided and the Chief Minister would not have given a misleading press
statement. He has also remarked that the appellant did not act befitting with
the status of the High Office of the Advocate General and he did not have the courage
to face the situation in the Court. Such are his conclusions, or surmises in
the review petition which was not disposed of on the merits but dismissed for
want of jurisdiction.
appellant's complaint before us is that he had no opportunity to meet the
allegations in the review petition, much less as against averments in the
subsequent application dated 25 January, 1989. He made it clear to the High
Court on 6 October 1988 and also 116 on 29 October 1988 that he entered
appearance pursuance to service of a copy of the review petition as per the
High Court rules, on the Advocate General's office. He has not entered
appearance as such on behalf of the State or other respondents. He has,
further, made it clear that there was no ground for review and it deserved to
be dismissed and so he did not wish to enter appearance at that stage before
the admission of the review petition. The appellant appears to be correct in
these statements and they are found recorded in the Court proceedings dated 6
be noted that C.P. Sen, J. dismissed the review petition on the ground of
maintainability, limitation and locus standi of the petitioner. Thereafter the
application was filed to pass strictures against the appellant in the light of
the Vidhan Sabha proceedings. B.M. Lal, J. seems to have acceded to that
request. No doubt each Judge is inde- pendent to form an opinion of his own in
deciding cases or in any phase of the decisional function. But the facts of the
present case against the background of the views ex- pressed by this Court
apropos to the earlier strictures against the Government, should have warned
B.M. Lal, J., no matter how clear he was in his mind, not to criticise the
appellant. The avoidance of even the appearances of bitter- ness, so important
in a Judge required him not to cast aspersions on the professional conduct of
Cardozo of course said:
great tides and currents which engulf the rest of men, do not turn aside in
their course, and pass judges by. We like to figure to ourselves the processes
of justice as coldly objective and impersonal. The law, conceived of as a real
existence, dwelling apart and alone, speaks, through the voices of priests and
ministers, the words which they have no choice except to utter. That is an
ideal of objec- tive truth toward which every system of jurisprudence tends
..... It has a lofty sound; it is well and finely said; but it can never be
more than partly true. "(1) Justice Felix Frankfurter, put it with a
are men, not disembodied spirits. Of course a Judge is not free from
preferences or, if you will, biases. "(2) (1) The Nature of the Judicial
Process by Benjamin N. Cardo- zo p. 168-169.
Some observations of Felix Frankfurter, J., on the Nature of Judicial Process
of Supreme Court Litigation 98 Proceedings AM Phil Society 233 (1954).
is true that the judges are flesh and blood mortals with individual
personalities and with normal human traits.
what remains essential in judging, Justice Felix Frankfurter said:
and foremost, humility and an understanding of the range of the problems and
(one's) own inadequacy in dealing with them, disinterestedness ..... and
allegiance to noth- ing except the effort to find (that) pass through
precedent, through policy, through history, through (one's) own gifts of
insights to the best judgment that a poor fallible crea- ture can arrive at in
that most difficult of all tasks, the adjudication between man and man, between
man and state, through reason called law.(3) Judicial restraint and discipline
are as necessary to the orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, this humility of function
should be a constant theme of our judges. This quality in decision making is as
much necessary for judges to command respect as to protect the independence of
the judiciary. Judicial restraint in this regard might better be called
judicial respect; that is, respect by the judiciary. Respect to those who come
before the Court as well to other co-ordinate branches of the State, the Execu-
tive and Legislature. There must be mutual respect. When these qualities fail
or when litigants and public believe that the judge has failed in these
qualities, it will be neither good for the judge nor for the judicial process.
Judges Bench is a seat of power. Not only do judges have power to make binding
decisions, their decisions legit- imate the use of power by other officials.
The Judges have the absolute and unchallenged control of the Court domain.
they cannot misuse their authority by intemperate com- ments, undignified
banter or scathing criticism of counsel, parties or witnesses. We concede that
the Court has the inherent power to act freely upon its own conviction on any
matter coming before it for adjudication, but it is a gener- al principle of
the highest importance to the proper admin- istration of justice that
derogatory remarks ought not to be made against persons or authorities whose
conduct comes into consideration unless it is absolutely necessary for the
decision of the case to animadvert on their conduct. (See (i) R.K. Lakshmanan v.A.K.
Srinivasan,  I SCR 204 and (ii) Niranjan Patnaik v. Sashibhushan Kar,
 2 SCC 567 at 576.
The Judiciary and Constitutional Politics--Views from the Bench by Mark W.
Cannon and David M.O.'s Brien p. 27.
Learned Judge having held that the High Court has no jurisdiction to entertain
the review petition ought not to have commented on the professional conduct of
the appellant and that too without an opportunity for him. We regret to note
that the observations made and aspersions cast on the professional conduct of
the appellant are not only without jurisdiction, but also they are wholly and
utterly unjusti- fied and unwarranted.
therefore, allow the appeal and expunge all the remarks made by B.M. Lal, J.
against the appellant in the impugned order.
we would have awarded heavy costs against the respondent but since the respondent
is also an Advocate, we refrain from making any order as to costs.