Gujarat High Court
Bhikhabhai vs State on 1 September, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
CA/9412/2011 15/ 15 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 9412 of 2011 In WRIT PETITION (PIL) No. 97 of 2011 With CRIMINAL MISC.APPLICATION No. 12587 of 2011 ========================================================= BHIKHABHAI KALYANJIBHAI JETHAVA - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : [C.A No. 9412 of 2011] MR AJ YAGNIK for Petitioner MR PK JANI GOVERNMENT PLEADER with Ms. SANGEETA VISHEN & Mr. RASHESH RINDANI, AGPs for Respondent MR SHALIN N MEHTA for Respondent(s) : 2 Appearance : [C.A No. 9412 of 2011] DR. MUKUL SINHA for Applicant ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI 17th January 2012 ORAL ORDER (Per
: HONOURABLE MR. JUSTICE AKIL KURESHI) Both these proceedings have been filed by two different individuals for the same purpose viz., urging us to take cognizance of a letter written by Shri Narendra Modi, the Hon'ble Chief Minister of the State of Gujarat dated 1st September 2011 addressed to the Hon'ble the Prime Minister of India and to initiate suo motu contempt proceedings. The letter pertains to appointment of Shri R.A Mehta [retired Judge of this High Court] as Lokayukta of the State of Gujarat by the Hon'ble Government on 25th August 2011. In short, the case of the applicants is that by writing such a letter, the Chief Minister has committed contempt of the Court, and that therefore, the Court should take suo motu action in this regard.
We may record that the applicant of Civil Application No. 9412 of 2011 had filed Writ Petition [PIL] No. 97 of 2011 in the nature of public interest litigation praying for a direction to the State of Gujarat to appoint Lokayukta within a stipulated time in accordance with the Gujarat Lokayukta Act, 1986. Such petition was filed, when the Governor had not yet issued the notification appointing Shri R.A Mehta as Lokayukta. When such petition was pending, the Governor of Gujarat issued Notification dated 25th August 2011 appointing Shri R.A Mehta as Lokayukta. Such appointment came to be challenged by the State Government and some other independent organizations. The State's petition was numbered as Special Civil Application No. 12632 of 2011. After initially placing the same before the learned Single Judge, the same came to be placed before us on 29th August 2011. We adjourned the matter to 5th September 2011 to enable the State to amend the same. On 5th September 2011, no further order was passed. However, on 7th September 2011, we passed the following order:-
"Several issues of considerable importance and interpretation of Constitutional provisions arise in this petition. Broadly the question is the nature of powers of the Governor of the State in appointing a person as 'Lokayukta' under Section 3 of the Gujarat Lokayukta Act, 1986. Whether in making such an appointment, the Governor is bound by advice of the Council of Ministers in every case or whether there may be a situation where it would be open for the Governor to make such an appointment de hors the advice of the Council of the Ministers and whether in the present case, such a situation has arisen are some of the questions which need to be answered in this petition. Simultaneously, the question of the very maintainability of the petition by the State Government in the present form shall also have to be examined.
Issue Notice to the respondents returnable on 21.09.2011."
In the meantime, on 1st September 2011, the Chief Minister wrote the letter in question to the Prime Minister and raised several issues with respect to appointment of Lokayukta by the Governor of the State. It is the case of the applicants that by writing such a letter, the Chief Minister has committed contempt as defined in Section 2 (c) of the Contempt of Courts Act, 1971 ["Act" for short] . It is the case of the applicants that writing such a letter amounted to a deliberate and intentional attempt to prejudice, or to interfere with the due course of judicial proceedings, or to obstruct the administration of justice.
Since the letter in question is the center of entire controversy, we would like to reproduce relevant portion thereof, which reads as under :-
"I am writing this letter to raise a matter which has an important bearing on our system of governance and federal polity of India. H.E. the Governor of Gujarat in collusion with the Leader of Opposition issued Warrant of Appointment of a person who has been participating in quasi political activities and campaigning against the State Government, as Lokayukta of the State without the advice of Council of Ministers. H.E. the Governor of Gujarat has wrongly appropriated the function of the duly elected State Government which is a major subversion of the Constitution of India.
2. State Government initiated the process of appointing Lokayukta way back in 2006. After consulting the Leader of Opposition and obtaining consent of the Chief Justice of Gujarat High Court, State Government advised the Governor to appoint Justice Kshitij R. Vyas (Retd.) as Lokayukta of the State. From 2006 to 2009, no much happened except routine correspondence between State Government and the Governor. In 2009, when Justice Vyas was appointed as Chairman of Human Rights Commission in Maharashtra, the Governor after a lapse of 3 years returned the file on 2.10.2009, asking for an alternate appointment.
3. State Government once again sought a panel of names from Chief Justice of Gujarat High Court and recommended the name of Justice J.R Vohra, a retired Judge of Gujarat High Court as Lokayukta. Leader of Opposition did not attend the meetings for consultation. Surprisingly, the Governor now insisted that Chief Justice of the High Court send only one name, perhaps at the behest of the Central Government and Congress Party.
4. The Chief Justice then sent the name of Justice S.D Dave, who withdrew this subsequently as he did not want to be appointed. On 7th June 2011 Chief Justice of Gujarat High Court suo motu suggested the name of Justice R.A Mehta. Leader of Opposition unilaterally supported the proposal of the Chief Justice. State Government wrote a letter back to Chief Justice pointing out the anti-government stand of Justice R.A Mehta on various occasions in the past and pointed out that a person with a biased and prejudiced mind against State Government cannot act independently as a Lokayukta. While the matter was under correspondence, regrettably, the Governor without consulting the State Government on 25/8/2011 notified the appointment of Justice R.A Mehta as Lokayukta of Gujarat. Credibility of the institution of Lokayukta has been eroded by such an appointment.
5. xx xx xx
6. xx xx xx
7. xx xx xx
8. xx xx xx
9. Sir, You are fully aware of the Constitutional provisions. The Article 163 of the Constitution is over and above Section 3 of the Lokayukta Act, 1986. The provision of any Act does not have a supremacy over provisions in the Constitution of India. In the same way, Lokayukta Act, 1986 is giving power to the Governor under Section 3 of the Lokayukta Act but at the same time, the Governor has to work on the aid and advice of the Council of the Council of Ministers as laid down in Article 163 of the Constitution.
10. It is obvious that all of sudden, there is a deliberate 'unique interpretation' by the Governor of Gujarat in the matter of appointment of Lokayukta of the State. H.E the Governor of Gujarat is holding back a number of progressive bills passed by the Legislative Assembly at the behest of Opposition Party to thwart the exemplary economic growth and development achieved by the State even in such a worldwide troubled economic scenario. As you are fully aware, the progressive Government and people of Gujarat have been contributed their mite much beyond their proportion in the national economy. Unfortunately, she decided to become an instrument in the hands of the Opposition Party in the State and the Central Government by denying the State Government to perform its function.
11. In the past, many of the Governors by their dubious omissions and commissions, brought disgrace to the Constitutional position. Subversion of the Constitution makes ordinary people, the backbone of democracy angry and weakens their faith in the democracy. I take this opportunity to urge you that as a Prime Minister having pledged to hold the Constitution of India, kindly should not allow the subversion of the very same Constitution for petty gains. It may not be out of place to mention here that Sarkaria Commission also recommended that in Opposition party ruled States, instead of politicians, scholarly and reputed persons should be appointed as Governor. Recent judgment of Hon'ble Supreme Court on May 2010, headed by the then Chief Justice of India, K.G Balakrishnan also said that "persons of caliber, experience and distinction are chosen to fill these posts.". Since the Governor is appointed under Article 155 by H.E the President on the advice of the Council of Ministers headed by the Prime Minister, it is your bounden duty to take note of subversion of the Constitution by the Governor and take remedial action.
12. In view of this, may I request you to take necessary action for the annulment of aforesaid warrant of appointment and immediate recall of Smt. Kamla Beniwal as Governor of Gujarat. I look forward to your prompt and decision action in the matter."
Though, we have not issued any formal notice to any of the respondents or to the alleged contemnor, learned Government Pleader Shri P.K Jani appeared on advance copy on behalf of the respondent no.1 in Civil Application No. 9412 of 2011 and also filed a reply sworn by one Shri Harsh Brahmbhatt, Additional Secretary to the Government dated 17th January 2012. Counsel for the applicant Shri Anandvardhan Yagnik submitted that such a reply should not be taken on record since the State Government has no role to play in the present proceedings. However, when the applicant has joined the State as respondent no.1 in the Application and to apprise us about certain aspects of the matter, reply-affidavit by responsible officer of the State is filed, we direct the same to be taken on record.
On the basis of pleadings on record, counsel Shri Yagnik vehemently contended that the letter written by the Chief Minister clearly interferes, or tends to interfere with, the due course of judicial proceedings, or at any rate it obstructs or tends to obstruct, the administration of justice. He submitted that the Chief Minister has thus committed criminal contempt as defined under Section 2 [c] of the Act. Since the present application is not filed either with the written consent of the Advocate General, or by the Advocate General himself, the applicant urges this Court to take suo motu cognizance of the contempt, as provided under sub-section (1) of Section 15 of the Act. He contended that any person can file such a proceeding urging the Court to take suo motu cognizance.
Counsel further submitted that there was a clear attempt on the part of the Chief Minister to leak the letter to the press and thereby bring the same in the public domain. The contents of the letter, which have direct bearing on the pending proceeding touching the appointment of Lokayukta would certainly have the effect of interfering with the course of justice, particularly when, it was written by none other than the Chief Minister of the State. Such letter would build negative public opinion and the same would not be conducive of smooth administration of justice.
Counsel relied on the following decisions in support of his contentions :
In Re-P.C Sen, reported in AIR 1970 SC 1821. It was the case wherein during the pendency of certain judicial proceedings, the Chief Minister of the State of West Bengal had made a public speech. Taking note of the contents of the speech, the High Court had formed an opinion that the same would amount to contempt of the Court. The Apex Court upheld the decision, making following observations :-
"13. There is in the speech no direct reference to the proceedings pending before the Court, but it is now common ground that the Chief Minister was aware of the filing of the petition and the issue of the rule which was served upon the Government. Whether he was aware of all the details of the allegations made in the petition is not relevant. If he knew that a petition was filed and the rule was served upon the Government of which he was the Chief Minister, before making any statement on a matter which is controversial it was his duty to acquaint himself with the allegations made and also to ascertain what the points in dispute were before going to a public broadcasting system to announce the case of the Government, whatever may be the motive of the Chief Minister and whatever he may have thought as a Chief Minister to be necessary in order to acquaint the public, a speech which present the case of the Government to the public, before it was tried by the Court, and the suggested that those who prepare sweetmeats out of milk were criminals and were acting in a manner contrary to the interest of the general public, was calculated to interfere with the due administration of justice."
Counsel relied upon the decision of the Apex Court in case of E.M Sankaran Namboodripad v. T. Narayanan Nambiar, reported in 1970 (2) SCC
325. It was the case where the Chief Minister of the State of Kerala, in his press conference, made general but strong observations against the judiciary at large, stating inter alia, that the judiciary had become "an instrument of oppression"
and the judges as "dominated by class hatred, class interests and class prejudices", "instinctively"
are favouring the rich against the poor. It was in this background, the Apex Court observed as under :-
"32. The question thus in this case is whether the appellant has said anything which brings out of the protection of Article 19 (1)(a) and exposes him to a charge of contempt of court. It is obvious that the appellant has misguided himself about the true teachings of Marx, Engels and Lenin. He has misunderstood the attack by them on State and the laws as involving an attack on the judiciary. No doubt the Courts, while upholding the laws and enforcing them, do give support to the State but they do not do so out of any impure motives. They do not range themselves on the side of the exploiting classes and indeed resit them when the law does not warrant an encroachment. To charge the judiciary as an instruction of oppression, the judges as guided and dominated by class-hatred, class interests and class prejudiced, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon judges which is calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions. It weakens the authority of law and law courts."
Counsel relied on decision of the Apex Court in case of Sammbhu Nath Jha v. Kedar Prasad Sinha & Ors., reported in [1972] 1 SCC 573, wherein it was observed that :-
"10. ...
...There are many kinds of contempts. The chief forms of contempt are insult to judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers .connected with the court and scandalising the judges or the courts. The last form occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority."
Counsel also relied on the decision of the Apex Court in case of Shri Baradakanta Mishra v. The Registrar of Orissa High Court & Anr., reported in [1974] 1 SCC 374, wherein, the Apex Court had an occasion to examine as to what would amount to contempt of court in various situations, particularly under the heading "scandalisation of the court".
Learned advocate Shri Sinha appearing for the applicant in Misc. Civil Application No. 12587 of 2011 in addition to adopting the contentions already made, further submitted that as is held in Biman Basu v. Kallol Guha Thakurta & Anr., reported in [(2010) 8 SCC 673], any citizen can move the Court urging the Court to take suo motu cognizance of the contempt of the court.
Counsel also relied upon the decision in case of Rachapudi Subba Rao v. Advocate General, Andhra Pradesh, reported in [(1981) 2 SCC 577], wherein, it was observed as under :-
"17. In the instant case, the contempt committed, though not in connection with any pending proceeding, primarily and squarely falls under sub-clause
(i) though the aforesaid residuary phrase in sub-clause (iii) may also be attracted. Unfounded imputation of mala fides, bias, prejudice or ridiculing the performance of a judge or casting aspersions on his integrity as has been done by the appellant in the notice in question are always considered as mean scandalising the court, and lowering the authority of his court by bringing him and his office into disrespect and disrepute. Vilification of the Judge, even in the administrative matters or decided judicial matters, may amount to "criminal contempt' under sub-clause (i) of Section 2
(c) as it lowers or tends to lower the authority or dignity of the court by undermining public confidence in the capacity of the judge to mete out even handed and impartial justice."
Learned Government Pleader Shri Jani relying on the affidavit filed on behalf of the State Government contended that there is nothing on the record to show that the Chief Minister instructed that said letter be circulated to the media. He further submitted that the contents of the letter can in no manner be seen as obstructing the course of justice, or tending to obstruct the administration of justice. He further submitted that a large number of legal luminaries and political personalities had raised their views in different manner, in different forums on the issue of appointment of Lokayukta by the Governor. He submitted that the contents of the letter written by the Chief Minister to the Prime Minister in no manner can be said to be scandalizing the court, or in any manner, creating such a situation where the author of the letter can be stated to have intended to interfere with, the due course of judicial proceedings, or to obstruct, the administration of justice in any manner.
Learned GP invited our attention to Rule 5 of the Contempt of Courts [Gujarat High Court] Rules, 1984 which provides for proceedings in criminal contempt and the manner in which the same may be initiated. He contended that the present applications do not satisfy requirements of Rule and therefore, such applications are not maintainable.
Counsel relied on the decision of the Apex Court in case of P.N Duda v. P. Shiv Shanker & Ors., reported in AIR 1988 SC 1208, wherein in connection with the speech made by the then Law Minister before the Bar Council was allegedly contemptuous. Such question was considered by the Apex Court and it was opined that no contempt was committed. Additionally,the Apex Court on the maintainability of the application urging the Court to take sou motu cognizance made certain observations with respect to the procedure laid down in the Supreme Court Contempt of Court Rules, 1975.
Having thus heard learned advocates and having perused the documents on record, at the outset, we may recall that in so far as Writ Petition [PIL] No. 97 of 2011, which is in the nature of public interest litigation urging this Court to direct the State to make early appointment of Lokayukta is concerned, in the letter written by the Chief Minister to the Prime Minister, there is no reference or connection at all. The Public Interest Litigation is filed to ensure early appointment of Lokayukta, which was vacant for unduly long period of time. Such petition was filed when the Governor of Gujarat had yet not issued notification appointing Shri Justice R.A Mehta as Lokayukta. Entire letter of the Chief Minister has reference to such appointment and the manner in which the Governor exercised powers in doing so. It may be that there are number of references to the previous attempts made to fill-up the post and the reasons, according to the author of the letter why the same could not be completed. However, such references have nothing to do with the pending writ petition no. 97 of 2011 (PIL). To that extent, we see no link between the letter in question with the pending proceedings before the High Court. Essentially, Civil Application No. 9412 of 2011 is filed in Writ Petition No. 97 of 2011 [PIL]. However, since in the application, there are references to the writ petition filed by the State Government viz., Special Civil Application No. 12632 of 2011 and its pendency when the letter was written, we have not confined our inquiry only with respect to the pending Writ Petition No. 97 of 2011 (PIL). There is also independent Misc. Civil Application No. 12587 of 2011 which also urges us to take suo motu cognizance of the letter and initiate contempt proceedings, if found to be contemptuous.
Neither in Civil Application No. 9412 of 2011 nor in Misc. Civil Application No. 12587 of 2011, the respective applicant has stated that the letter of the Chief Minister was leaked or circulated to the media by the Chief Minister, or at the instance of the Chief Minister. In Civil Application No. 9412 of 2011, it is stated that the Information Department of the State of Gujarat has forwarded very confidential letter to all the newspapers and based on its contents, several news items came to be published on 2nd September 2011. It is further stated that, "it can be safely assumed that letter of Hon'ble Chief Minister to Hon'ble the Prime Minister must have been consciously, willingly and deliberately given by Hon'ble the Chief Minister to the Information Department of the State of Gujarat for its circulation in the print and visual media to make it public."
In Misc. Civil Application No. 12587 of 2011, it is stated that -
"5. The aforesaid letter was given wide publicity in the national and local daily newspapers and the newspapers published the said letter prominently on the 2nd September 2011. The Xerox copy of the said news item published in the Times of India dated 2nd September 2011 is annexed herewith and marked as Annexure-II".
Both these applicants, therefore, do not firmly and unequivocally assert that such letter was circulated by, or under the instructions of the Chief Minister to the media. No basis has been provided by the applicants' assumption that the same must have been circulated under the instructions of the Chief Minister. In contempt of Court proceedings, we would not be guided by such general assertion without any specific averments. Further, in the affidavit-in-reply filed on behalf of the respondent no.1, it is categorically stated that the Chief Minister had not passed any order, or issued any directions to release, or to circulate the said letter to the press and no orders are issued or instructions given by the Chief Minister in this regard. It is further stated that the Office of the Chief Minister had also not issued any instructions to anyone to circulate the said letter. We are conscious that such denials are made by the Additional Secretary to the Government of Gujarat and not by the Chief Minister himself, who was not summoned in the present proceedings. However, this denial by a senior responsible officer of the State Government is only taken note of in addition to our conclusion that the applicants have not made any affirmative assertion that the letter was circulated to the media by or under the instructions of the Chief Minister.
Additionally, we have also perused the contents of the letter in question. It is a letter by the Chief Minister of a State to the Prime Minister of the country raising concerns and grievances about the appointment of a Lokayukta in the State by the Governor without aid and advice by the Council of Ministers. On one hand, it questioned the legality thereof, in view of the provisions contained in Article 163 of the Constitution providing that there shall be a Council of Ministers to aid and advice the Governor in exercise of his functions; except in so far as he is by or under the Constitution required to exercise such functions or any of them in his discretion. It is the stand of the Chief Minister in the said letter that appointment of Lokayukta under Section 3 of the Gujarat Lokayukta Act could not have been made without the aid and advice of the Council of Ministers. On the other hand, it also questioned the manner in which such appointment came to be made., primarily conveying that the Governor had been influenced by the stand of the Leader of Opposition. In the concluding paragraph, the Chief Minister requested the Prime Minister to take necessary action for the annulment of the order of appointment of Lokayukta and also to recall Smt. Kamla Beniwal as Governor of the State.
In so far as the requests contained in the said letter are concerned, they are two fold. First is for annulment of the warrant of appointment of Lokayukta. It may be noted that the Prime Minister has no power under any statute to do so, and that therefore, such a request was redundant. Secondly, it may also be that even if there were such powers, ordinarily, the Court would not encourage parallel proceedings before any forum when a writ is already pending in the High Court. This is, however, not the same thing as to suggest that making any such request amounts to contempt, as defined in Section 2
(c) of the Act. The second request pertains to recall of the Governor and it had wholly political overturns. To our mind, the same had no relation with the State's pending petition before the High Court. In a democratic set up in several issues, particularly those having political overturn, Court proceeding need not be the only recourse. It is of course true that there is often times only a thin line dividing pursuing political options and creating an atmosphere which would obstruct the course of justice. But, in the present case, we do not think the Chief Minister in representing his view point to the Prime Minister crossed such a line.
In so far as the contents of the letter are concerned, we do not find the same would fall within the description so as to prejudice, or interfere with, or tends to interfere with the due course of judicial proceedings, or would interfere with, or obstructs or tends to obstruct, the administration of justice. In fact, most of the contents of the said letter form part of the State's averments in the petition itself, challenging the Governor's order appointing Lokayukta. In the said petition, it is strongly urged that the Government had no power to appoint a Lokayukta without aid and advice of the Council of Ministers. The sequence, starting from 7th August 2006, when the Chief Minister held a meeting with the Leader of Opposition to consult him on the question of appointment of Lokayukta have also been stated in the petition. Various stages through which consultation process passed through are also highlighted. Different exchanges between the three dignitaries viz., the Chief Justice, the Chief Minister and the Governor before the issuance of the appointment by the Governor have also been set out in detail. The nature of consultation and the stand of the Leader of Opposition in this regard were also subject matter of the said petition. It can, therefore, not be said that in the letter dated 1st September 2011 any such angle was brought into picture, by virtue of which the said letter can be stated to be one, which would obstruct, or tend to obstruct the course of proceedings before the High Court.
We are conscious that in case of Re-P.C. Sen [Supra], the Apex Court was of the opinion that if the speech which was broadcast by the Chief Minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the court, even assuming that he had not intended thereby to interfere with the due course of justice. Thus, the Court drew distinction between the communication which was calculated at interfering with the course of justice and one which was issued with an intention to interfere with the due course of justice. In the subsequent decision in case of Sammbhu Nath Jha [Supra], while reiterating that the intention of the contemnor to cause any obstruction to the due course of justice, or in due course of administration of law, is not a necessary ingredient of contempt of the court and it is enough to show that his act was calculated to obstruct, or interfere with the due course of justice and administration of law, however held that in such cases the Court would exercise circumspection and judicial restraint in the matter of taking action against the contemnor. It was observed that the Court has to take into account the surrounding circumstances and the material facts of the case and on conspectus of them to come to a conclusion whether because of some contumacious conduct or other sufficient reason, the person proceeded against should be punished for contempt of court.
In the present case, however, we need not enter into such niceties since we are of the opinion that writing of the letter by the Chief Minister cannot be stated to be either with the intention, or even a calculated act to interfere with, or to obstruct the due course of justice, or the administration of justice.
In the result, we do not find any reason to entertain these Applications or to issue notice against the alleged contemnor. Learned advocate Shri Yagnik, at this stage, reminded us that previously when the State's petition was being heard, we had orally requested learned Advocate General to ascertain and inform us as to at whose instance, the letter of Chief Minister was circulated to the press. However, this was not an order but only a query since we had at that stage not even begun hearing of the contempt proceedings. Further, at the request and insistence of the learned advocates for the applicants, we have heard these proceedings on merits, even while the State's petition is still pending. In that view of the matter, we have decided the issue, as emerging from the record, without further inquiries. Additionally, our questions substantially got answered in the affidavit-in-reply filed by the Additional Secretary to the Government of Gujarat.
In the result, these petitions are dismissed.
{Akil Kureshi, J.} {Ms. Sonia Gokani, J.} Prakash*