J. R. Parashar,
Advocate & Ors Vs. Prasant Bhushan, Advocate & Ors  Insc 432 (28 August 2001)
Pattanaik & Ruma Pal Ruma Pal, J
allegations in this contempt application relate to an incident which is alleged
to have taken place on 30th
According to the petition, on that day, the respondents led a huge crowd and
held a dharna in front of this Court and shouted abusive slogans against this
Court including slogans ascribing lack of integrity and dishonesty to the
Institution. This was done in the presence of the media. The petition alleges
that the petitioners protested but were attacked and assaulted by the
respondents who called them brokers of this Court. The petition goes on to
state that that evening at 6.00 P.M while the petitioners were watching the
police officials trying to disperse the crowd, the respondents again attacked,
abused and assaulted the petitioners. On the next day at 1.00 P.M. the petitioners lodged a complaint with the Tilak Marg,
Police Station. A copy of the complaint has been annexed to the petition.
According to the petition the dharna, slogan shouting and assault on the
petitioners were designed to compel the Court to decide a pending application
filed by the respondents before this Court in the respondents favour.
the allegations in the petition that the respondents had incited a crowd by
shouting slogans attacking the integrity of the Judges of this Court, notices
were issued to the respondents of the application, so that they could give
their version of the incident, if it had taken place at all.
of the three respondents have filed separate affidavits in response to the
notice. All three respondents have admitted that there was a dharna outside the
gates of this Court on 30th
December, 2000. The dharna
had been organized by the Narmada Bachao Andolan and the gathered crowd were
persons who lived in the Narmada Valley and were aggrieved by the majority judgment of this Court
relating to the building of the dam on the Narmada River.
as respondent No. 1 is concerned, he has asserted that while he supported the
cause and had espoused it by appearing as counsel before this Court, he did not
approve of the holding of a dharna as a way of protesting against the judgment
of this Court. He has denied that he took part in the dharna although, he says,
he did nothing to stop it. He has also denied that he shouted any slogan
against the Court nor did he assault, abuse or threaten any of the petitioners.
as respondent No. 2 is concerned, she has denied that any incident involving
the petitioners, as alleged in the petition, had taken place and asserted that
the allegations that the petitioners were threatened or abused or assaulted
were false and fabricated. She has admitted participation in the dharna and
also to have made speeches and raised slogans but has said that to her
knowledge, no slogan was raised or speech made impugning the integrity of the
Judges of this Court. She has sought to justify the holding of the dharna as a
legitimate form of protest against the judgment which had been delivered by
this Court in connection with the building of the dam on the Narmada river.
from giving the background of the Narmada Bachao Andolan and the merits of the
case of the oustees whose case she represents, the respondent No. 2 has said in
Superior Courts have recently shown a disturbing tendency to use the power of
contempt against persons who have been criticizing the Courts and their
judiciary which insulates itself from criticism by using the power of Contempt,
is bound to insensitive to the people that it is meant to serve. This does not
bode well for the future of our republic .I will continue to help them raise
their voices in protest against this system even if I have to do so against the
Judiciary and the Courts. I will continue to do so as long as I can, even if I
have to be punished for contempt for doing that.
respondent No. 3 also filed an affidavit in response to the notice. The
respondent No. 3 has denied that she had raised any slogan against the Court.
According to the respondent No.3, she had left the dharna at about 6.00 p.m. and that no such incident, as alleged in the
petition or the FIR had taken place. She has asserted her right to participate
in any peaceful protest that she chose to. She has clarified that she has
never, either in writing or in any public forum, cast aspersions on the Court
or the integrity of the Judges. However, according to the respondent No. 3, she
has faced legal harassment for her writing, the latest incident being the
present proceedings. She has stressed the need for Courts not to be intolerant
of criticism or expressions of dissent as this would mark the beginning of the
end of democracy.
was followed by three paragraphs which are quoted verbatim:
grounds that judges of the Supreme Court were too busy, the Chief Justice of
India refused to allow a sitting judge to head the judicial enquiry into the Tehelka
scandal, even though it involves matters of national security and corruption in
the highest places.
when it comes to an absurd, despicable, entirely unsubstantiated petition in
which all the three respondents happen to be people, who have publicly though
in markedly different ways questioned the polices of the government and
severely criticized a recent judgment of the Supreme Court, the Court displays
a disturbing willingness to issue notice.
indicates a disquieting inclination on the part of the Court to silence
criticism and muzzle dissent, to harass and intimidate those who disagree with
it. By entertaining a petition based on an FIR that even a local police station
does not see fit to act upon, the Supreme Court is doing its own reputation and
credibility considerable harm.
returnable date, the respondents appeared in person.
further presence was dispensed with. By an order dated 23rd April 2001, the Additional Solicitor General
was appointed Amicus Curiae and requested to assist the Court.
hearing, the learned Additional Solicitor General submitted that the paragraphs
in the affidavits of the respondents 2 and 3 quoted earlier appeared to be
contumacious. The petitioners, who appeared in person, addressed the Court in a
manner which not only ill became their standing as Advocates of this Court but
also belied their claims to be champions of this Courts dignity.
respondent No. 1 submitted that the allegations made in the petition should not
be accepted as the police who were present all along had refused to register an
FIR based on the complaint of the petitioners. Learned counsel for the
respondent No. 2 contended that the petition was grossly defective and should
not have been accepted by the Registry of this Court at all.
from that, it was contended that what was stated by the respondent No. 2 in her
affidavit was a criticism of the Courts judgment and not contumacious. The
respondent No. 3, appearing in person, stated that she had nothing to add to
her affidavit and if that amounted to contempt then she was prepared to face
considering the merits of the case, it is necessary to highlight principles
relating to the law of contempt which though well settled bear repetition.
civil society is founded on a respect for the law. If every citizen chose to
break the law, we would have no society at all, at least not a civil one. It is
this respect for the law and of the law enforcing agencies that, somewhat
paradoxically, ensures the freedoms recognised in the Constitution. The respect
is at best a fragile foundation. While it is to be built and sustained by the
conduct of the persons administering the law, it has to be shored up by
sanctions for actual breaches of the law and for actions destroying that
respect. The law of contempt is framed for the second purpose.
is why although under Article 19(1)(a) of the Constitution, all citizens are
guaranteed the right to freedom of speech and expression, sub-Article (2)
in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
.. in relation to contempt of court..
from the power conferred by the Constitution on the Supreme Court and each High
Court to punish contempts of itself, the Contempt of Courts Act, 1971 (referred
to as the Act) has empowered the Courts to punish actions which fall within the
definition of civil and criminal contempt in that Act.
what is alleged in the petition were true then it would be a case of criminal
contempt and Criminal Contempt has been defined in the Act as meaning
publication (whether by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the doing of any other act
or tends to scandalize, or lowers or tends to lower the authority of, any
or interferes or tends to interfere with, the due course of any judicial proceedings;
or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner This does not mean that a
judgment is not open to fair criticism. Section 5 of the Act says that a person
shall not be guilty of contempt of court for publishing any fair comment on the
merits of any case which has been heard and finally decided.
operative word is fair. In other words, in the guise of criticizing a judgment,
personal criticism of the Judge is impermissible. The law as it stands today is
what was said by the Privy Council in 1936 :
wrong is committed by any member of the public who exercises the ordinary right
of criticising in good faith in private or public the public act done in the
seat of justice. The path of criticism is a public way : the wrongheaded are
permitted to err therein : provided that members of the public abstain from
imputing improper motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism and not acting in
malice or attempting to impair the administration of justice, they are immune.
is not a cloistered virtue : she must be allowed to suffer the scrutiny and
respectful even though outspoken comments of ordinary men.
ascribe motives to a Judge is to sow the seed of distrust in the minds of the
public about the administration of justice as a whole and nothing is more
pernicious in its consequences than to prejudice the mind of the public against
judges of the Court who are responsible for implementing the law . Judges do
not defend their decisions in public and if citizens disrespect the persons
laying down the law, they cannot be expected to respect the law laid down by
them. The only way the Judge can defend a decision is by the reasoning in the
decision itself and it is certainly open to being criticised by anyone who
thinks that it is erroneous 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 controversy. Still less into political
controversy. We must rely on our conduct itself to be its own vindication .
in brief, is the substantive law which is relevant for the purposes of the case
as the procedure is concerned at this stage we note only those principles which
are relevant for a decision on the issues involved in this case and start with
the initiation of proceedings. Sections 14 and 15 of the 1971 Act both deal
with the procedure for taking cognizance in cases of criminal contempt. In
cases where the contempt is in the face of the Supreme Court or High Court, the
Court acts suo motu. In cases of criminal contempt other than a contempt
referred to in Section 14, the Supreme Court or the High Court may under
Section 15(1) take action on its own motion or on a motion made by
other person, with the consent in writing of the Advocate-General,
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.
xxx Explanation. In this section,the expressionAdvocate-Generalmeans,- - (a) In
relation to the Supreme Court, the Attorney General or the Solicitor- General:
underlying rationale of clauses (a), (b) and (c) appears to be that when the
Court is not itself directly aware of the contumacious conduct, and the actions
are alleged to have taken place outside its presence, it is necessary to have
the allegations screened by the prescribed authorities so that the Court is not
troubled with frivolous matters. The Sanyal Committee which had been set up in
1961 to consider and suggest reforms to the existing law of contempt and whose
recommendations formed the basis for the present Act, explained the need for
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 motion by some other agency. Such a course of
action would give considerable assurance to the individual charged and the
public at large.
actual proceedings for contempt are quasi-criminal and summary in nature. Two
consequences follow from this. First, the acts for which proceedings are
intended to be launched must be intimated to the person against whom action is
proposed to be taken with sufficient particularity so that the persons charged
with having committed the offence can effectively defend themselves.
for this reason Section 15 requires that every motion or reference made under
this section must specify the contempt of which the person charged is alleged
to be guilty. The second consequence which follows from the quasi-criminal
nature of the proceeding is that if there is reasonable doubt on the existence
of a state of facts that doubt must be resolved in favour of the person or
persons proceeded against. In addition this Court has framed Rules under,
inter-alia, Section 23 of the Act providing in detail for the procedure to be
followed by the Court and its Registry on the one hand and the
complainant/respondent on the other.
brings us to the present proceedings. Learned counsel for the respondent No.2
was correct when he submitted that the petition was shabbily drafted and
procedurally grossly defective.
fact almost every one of the Rules framed by this Court have been violated.
Rule 4 (a) directs that every petition under rule 3(b) or (c) shall contain (i)
the name, description and place of residence of the petitioner or petitioners
and of the persons charged;
therefore, mandatory that the places of residence of both the petitioners and
the respondents are given. Yet each of the five persons named as petitioners
has given the Bar Library or the Lawyers Chamber as his address. The
non-compliance with Rule 4(a) is more shocking when it comes to the
respondent No.1s address has been given as his chamber.
respondent No.2 has been described as Leader Narmda (sic) Bachao Andolan and
the Respondent No.3 as the Booker Prize Winner. Both, their addresses have been
given as C/o the respondent No.1 at his legal chambers in the premises of this
serious flaw is the verification of the petition. Rule 4(b) requires that The
petition shall be supported by an affidavit. There are five named petitioners
yet except for the respondent No.1 no one else has either signed the petition
or affirmed it.
under Rule 3 like Section 15 of the Act, the Court may take action in cases of
criminal contempt either a) suo motu ; or b) on a petition made by
Attorney-General, or Solicitor General; or c) on a petition made by any person,
and in the case of a criminal contempt with the consent in writing of the
Attorney- General or the Solicitor-General.
provides that only petitions under Rules 3(b) and (c) shall be posted before
the Court for preliminary hearing and for orders as to issue of notice. It is
clear from Rule 5 that the matter could have been listed before this Court by
the Registry as a petition for admission only if the Attorney General or
Solicitor General had granted his consent. In this case, the Attorney General
had specifically declined to deal with the matter and it does not appear that
any request was made to the Solicitor General to give his consent.
course, this Court could have taken suo motu cognizance had the petitioners
prayed for it. They had not. Even if they had, it is doubtful whether the Court
would have acted on the statements of the petitioners had the petitioners been
candid enough to have disclosed that the police had refused to take cognizance
of their complaint. In any event the power to act suo motu in matters which
otherwise require the Attorney General to initiate proceedings or at least give
his consent must be exercised rarely. Courts normally reserve this exercise to
cases where it either derives information from its own sources, such as from a
perusal of the records, or on reading a report in a newspaper or hearing a
public speech or a document which would speak for itself. Otherwise sub-section
(1) of Section 15 might be rendered otiose .
matter is listed before the Court, the Court assumes that the formalities in
connection with the filing have been scrutinized by the Registry of this Court
that the proper procedure has been followed as it is the duty of the Registry
to scrutinise the petition to see whether it is in order before placing it
before the Court for consideration. There is no occasion for this Court to
assume the task of the Registry before considering the merits of each matter. Had
our attention been drawn to the procedural defects, we would have had no
hesitation in rejecting the application in limine on this ground alone.
the merits, we may clarify here that our enquiry is limited to the alleged
contempt of this Court by the respondents.
not concerned with any scuffle that may or may not have taken place during the dharna.
That is a matter entirely personal to the petitioners and does not call for an
enquiry in this jurisdiction. But we are concerned with the holding of the dharna
and the allegation that slogans had been shouted which denigrated the
a dharna by itself may not amount to contempt. But if by holding a dharna
access to the courts is hindered and the officers of court and members of the public
are not allowed free ingress and egress, or the proceedings in Court are
otherwise disrupted, disturbed or hampered, the dharna may amount to contempt
because the administration of justice would be obstructed. There is no
allegation in the petition that the participants in the dharna had picketed the
gates of this Court and prevented lawyers or litigants from entering and
leaving the Court premises. Nor is it the petitioners case that the dharna
disturbed or prevented the Courts from functioning.
holding that a dharna held to protest a decision of a court may not per se
amount to contempt, we must not be understood as approving the holding of a dharna
before the Court. On the other hand it is deprecated and must be discouraged
otherwise every disgruntled litigant could adopt this method of ventilating his
grievance. It is, in any case, an inappropriate form of protest since the
object of holding a dharna is either to raise public opinion or to exhibit the
extent of public opinion against a decision of a court. Neither of these
objects weigh with courts when deciding a case. Judges are required to decide
what they think is right according to the law applicable and on the material
placed before them and not be swayed by public opinion on any particular issue.
allegations of shouting of abusive slogans cannot be accepted merely on the
basis of the statements in this petition.
procedural flaws in the petition, as noted earlier are not mere technicalities.
They are as vital to the acceptability of the petition and its contents. Where
there is no other legally admissible evidence before the Court and the only
material which the Court can take into account are the statements contained in
the petition, the petition assumes a particular importance. Apart from the
defective nature of the petition, the unexplained reluctance on the part of the
four petitioners to affirm an affidavit verifying the facts contained in the
petition, the failure to even attempt to obtain the consent of the Solicitor
General and most importantly the refusal of the police station to record an FIR
on the basis of the complaint lodged by the petitioner No. 1 are telling
circumstances against the case in the petition. Admittedly, the police
personnel were present at the time of the incident. Their refusal to record the
FIR on the petitioners complaint is, therefore, significant. We have also noted
that there is no allegation in the complaint that the respondents 1 and 2 had
shouted defamatory statements against the Court. On the other hand, we have the
three affidavits filed by the respondents where the respondent Nos. 1 and 3
have categorically denied on oath that they shouted any slogans and the
respondent No. 2 has denied shouting any slogan which could be termed as
contumacious. There is no reason why their statements should be rejected. In
the circumstances, we are not prepared to direct any further enquiry into the
matter by requiring parties to lead evidence, particularly when the statements
in the complaint filed by the petitioners are materially discrepant with the
allegations in the petition.
should have concluded the matter in favour of the respondents - had it not been
for the statements made in the affidavits of respondents Nos. 2 and 3 which we
have quoted earlier. There can be no doubt that the filing of an affidavit is
publication within the definition of criminal contempt. An affidavit is not a
secret document. It forms part of the Court records and is available to and
accessible by the public. The question is whether the statements made in the
affidavits of the respondent Nos. 2 and 3 could be termed to be fair criticism
or do the comments impute improper motives to those taking part in the
administration of justice? Respondent No. 2 has spoken generally of the superior
Courts using the power of contempt against persons who have been criticising
the Courts and their judgments. According to the respondent No. 2s counsel,
this reaction was in response to a statement in the petition which appeared to
the respondent No. 2 to be one of the bases for issuing the notice against her.
true that the notice did not specify the contumacious acts with which the
respondent was charged in terms of Rule 6 read with Form I. Only a copy of the
petition had been served on the respondents along with the notice. It would not
be unreasonable for the respondent No.2 to assume that every statement
contained in the petition formed part of the charge. In the petition, it has
been stated that the Honble Judges of the Supreme Court are pious
constitutional authority and are not open for public and press to criticize,
comment, shout defamatory and derogatory slogans against its verdict. Apart
from the shouting of defamatory slogans, the rest of the sentence does not in
fact correctly state the law. As we have said earlier, Courts like any other
institution do not enjoy immunity from criticism as long as the criticism is
fair, reasonable and temperate and does not accuse Judges of discharging their
duties for improper motives or on extraneous considerations .
personal motive has been ascribed by the respondent No.2 to any particular
Judge. Her comments are general in nature and may be construed as the
expression of a perceived error in the decisions of superior Courts in their
according to the standards of fair criticism noted earlier and giving the
respondent No. 2 the benefit of the doubt, we do not intend to take any further
action against respondent No. 2 for her comments regarding the superior Courts
in her affidavit.
the respondent No. 3 appears to us, prima-facie, to have committed contempt.
She has imputed motives to specific Courts for entertaining litigation or
passing orders against her.
has accused Courts of harassing her (of which the present proceeding has been
cited as an instance) as if the judiciary were carrying out a personal vendetta
against her. She has brought in matters which were not only not pertinent to
the issues to be decided but has drawn uninformed comparisons to make
statements about this Court which do not appear to be protected by the law
relating to fair criticism. We are conscious that the respondent No. 3 has said
before us that she stood by the comments made even if they were held to be
contumacious. At the same time, we are also aware that when the statement was
made, the respondent had not been called on formally to defend herself against
this charge. The prescribed procedure will have to be followed.
the aforementioned reasons, while dismissing the proceedings initiated on the
basis of the petition against all three respondents, we direct that notice in
the prescribed form be issued to the respondent No.3 as to why the respondent
No. 3 should not be proceeded against for contempt for the statements in the three
paragraphs of her affidavit set out earlier in this judgment.
Pal) August 28, 2001 Andre Paul TerenceAmbard V. The Attorney General of
Trinidad and Tobago AIR 1936 PC 141. See also Aswini Kumar Ghose V. Arabinda
Bose AIR 1953 SC 75; Rama Dayal Markarha V. State of Madhya Pradesh AIR 1978 SC
921: 1978(3) SCR 497; Re: V. Ajay Kumar Pandey, Advocate JT 1998 (6) SC 571; Rustom
Cawasjee Cooper V. Union of India AIR 1970 SC 1318; Perspective Publications (O) Ltd. V. The
State of Maharashtra
AIR 1971 SC 221; Re: Sanjiv
Datta 1995 (3) SCC 619 Rama Dayal Markarha V. State of Madhya Pradesh (ibid)
p.928 Regina V. The commissioner of Police of
the Metropolis 1967 (2) WLR 1204, 1207 See S.K. Sarkar v. Vinay Chandra Misra
1981 (1) SCC 436 See P.N. Duda V. P. Shiv Shankar 1988 (3) SCC 167 S.K. Sarkar
V. V.C. Misra (supra) See Rustom Cawasjee Cooper V. Union of India AIR 1970 SC
1318; Perspective Publications (P) Ltd.