# )' P.N. DUDA v. P. SHIV SHANKAR & OTHERS

- **Citation:** [1988] 3 S.C.R. 547
- **Court:** Supreme Court of India
- **Decided:** 1988-04-15
- **Case number:** Criminal Miscella· B neous Petition No. 260 Of 1988
- **Bench:** Sabyasachi Mukharj!, S. Ranganathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-n-duda-v-p-shiv-shankar-others-9914
- **Pages:** 54

## Headnote

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 undignifled 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 mainG
tainable without the consent of the Attorney General or the Solicitor
General. In the meantime, Shri R.N. Trivedi, Advocate, filed an application, 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
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B
c
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E
F
G
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548
SUPREME COURT REPORTS
[19881 3 S.C.R.
not constituted contempt within the meaning of section 2(c) of the Act.
Declining to initiate the contempt proceeding and dismissing the
peiitioii and disposing of the application filed by Shri R.N. Trivedi, the
Court,
HELD: Per Sabyasachi Mukharji, J.:
Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor
General, as contended by Dr. Chitale on behalf of Shri Shiv Shankar,
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
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
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. Judgmen

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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 undignifled 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 mainG
tainable without the consent of the Attorney General or the Solicitor
General. In the meantime, Shri R.N. Trivedi, Advocate, filed an application, 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
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B
c
D
E
F
G
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548
SUPREME COURT REPORTS
[19881 3 S.C.R.
not constituted contempt within the meaning of section 2(c) of the Act.
Declining to initiate the contempt proceeding and dismissing the
peiitioii and disposing of the application filed by Shri R.N. Trivedi, the
Court,
HELD: Per Sabyasachi Mukharji, J.:
Before deciding the question whether this application was maintainable without the consent of the Attorney General or the Solicitor
General, as contended by Dr. Chitale on behalf of Shri Shiv Shankar,
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
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
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
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
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
Court. His view was that the class composition of any instrument indi-
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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 c
politicians or ministers but the inability of the courts of law to deliver
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 reasonable 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 predisposition to convict or deliberately took a turn in discussion of
evidence because be had already made up his mind to convict the
r
accused or has a wayward bend of mind, is attributing motives, lack of
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
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550
SUPREME COURT REPORTS
[19881 3 S.C.R.
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 "search for light
among the social elements of every kind that are the living· force behind
the facts they deal with". [569G-H; 570AI
Though at places, intemperate, the statement of the Minister in
this case cannot be said to amount to interference with the administration 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
another matter. In public life, where the champions of the downtrodden 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.
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
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
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 intemperate, it read thus:
"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
1
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P.N. DUDA v. P.S. SHANKAR
551
is a tribute to the Supreme Court that it has not discriminated 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 the laws and the
loopholes in the legislation. The Courts are not deterred by such
criticisms. [576G-H]
A
B
Bearing in mind the trend in the law of contempt as noticed
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 AttorneyGeneral 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
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 nongranting 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 proceedings 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
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SUPREME COURT REPORTS
[1988) 3 S.C.R.
c"ntempt proceedings. In this case, the Minister had taken the plea that
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-
'(
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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
c
in his absence or inability, the Solicitor General. [577C-H;'578A-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 justiciability 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 examination 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 application 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
,
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J.
;
PX DUDA v. P.S. SHANKAR
553
Lordship's opinion, it will be more .appropriate for an officer of the
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
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 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
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
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 withheld without reasons or without consideration of that right granted to
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
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
A
B
c
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in that proceeding though the prayers and the notice must be issued
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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
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SUPREME COURT REPORTS
[!988] 3 S.C.R.
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A
Having considered the peculiar facts and circumstances of this
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
'
c
Legislature, Executive and Judiciary under the Constitution of India'.
¥
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
.
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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-
. 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 c
questions or general importance for consideration to evolve a proper
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 consent 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
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 informant as the petitioner and certain persons as respondents is inappropriate 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
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556
SUPREME COURT REPORTS
[1988) 3 S.C.R.
A nil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1 that" ••••••••
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
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 petition, 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 refusing 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 consent 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 maintainability 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
.1
-'r.
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 maintainable 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),
A
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
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 statutory 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; I 600D I
c
(c) In case the Attorney General/Solicitor General refuse consent
or decline to act, their decision is not judicially reviewable and a petitioner'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
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.
GHargovind 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;
•
-
1
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
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.
The following Judgments of the Court were delivered:
D
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 statements against the Supreme Court which are derogatory to the dignity
of this Court, attributing this Court with partiality towards economiG
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.
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:
B
c
"(a) The Supreme Court composed of the element from
the elite class had their unconcealed sympathy for the
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 compensation. must represent the price which a willing seller is
prepared to accept from a willing buyer. The entire programme of Zamindari abolition suffered a setback. The
Constitutioli had to be amended by the 1st, 14th and 17th
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:
E
F
G
H
"(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:
'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
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 themselves.'
,
Should we not ask how true Holmes Alexander was in
the Indian context."
The Minister further stated:
"( c) Twenty years of valuable time was lost in this confrontation presented by the Judiciary in introducing and implementing basic agrarian reforms for removal of poverty
y·
~
\.
..,
1
-
P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.]
561
what is the ultimate result. Meanwhile even the political
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."
It was further stated by him:
"(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".
"(e) Madhadhipatis like Keshavananda and Zamindars
A
B
c
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
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
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
F
G
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
person.