Delhi High Court
Digvijaya Narain Singh vs A.K. Sen on 3 December, 1970
Author: H.R. Khanna
Bench: H.R. Khanna
JUDGMENT H.R. Khanna, C.J.
(1) Shri Digvijaya Narain Singh filed this petition under section 3 of the Contempt of Courts Act, 1952, and Article 251 of the Constitution of India praying that action for contempt of Court be taken against 21 persons. When the petition came up for preliminary hearing on 1st December, 1969 we directed that notice be issued to Shri Ashoke Kumar Sen, respondent No. 2. (hereinafter referred to as the respondent), only.
(2) The Indian National Congress, according to the case of the parties is the biggest political organisation in India. It was started in 1885 and has a membership running into millions all over the country. Shri S. Nijalingappa was elected President of the Congress with effect from 1st January, 1968, turn a period of two years. As the term of the President was to expire on 31st December, 1969, the Working Committee of the Congress passed a resolution on 28th April, 1969 at Faridabad purporting to extend the term of the office bearers, including the President, for a further period of one year. According to the respondent the aforesaid resolution was not legal and was contrary to the constitution of the Congress and in any case had to be ratified by the All India Congress Committee within six months from the passing thereof. On 31st October, 1969, a requisition purporting to be signed by more than 400 out of a total a 707 members of the All India Congress Committee was sent to Shri Nijalingappa, President of the Congress, to convene a meeting of the All India Congress Committee to consider a resolution, the concluding part of which was as under :- "THEA.I.C.C., therefore, resolves that the programme of electing a new Congress President in December, 1969, when the term of the present President would have ordinarily come to an end. be undertaken on the basis of present delegates and steps to that end be taken without delay so that the election of the new President is completed by 30th December, 1969."
(3) A meeting of the Congress Working Committee, presided over by Shri Nijalingappa, turned down the above requisition. A meeting was thereafter held under the chairmanship of Shrimati Indira Gandhi on November 1, 1969. It was decided by those present to convene a meeting of the All India Congress Committee, as per requisition signed by about 400 members, on 22nd and 23rd November. 1969. at Delhi.
(4) On 16th November, 1969, the petitioner filed a suit against Dr. Shankar Dayal Sharma and 20 others containing the following prayers:- "IT is respectfully prayed that this Hon'ble Court may be pleased to issue a declaration that the requisition, which is the subject matter of the notice of the meeting, is beyond the constitution of the Indian National Congress. This Hon'ble Court may be further pleased to issue an injunction restraining the requisitionists from appropriating to themselves the name. Indian National Congress, A.I.C.C. or the name of any other constituent bodies of the Indian National Congress. "This Hon'ble Court may be further pleased to issue an injunction restraining the defendants from holding a meeting in the name of or under the garb or in the name and style of representing as either by themselves or by their agents. supporters, whether directly or indirectly, a meeting of the Indian National Congress or the All India Congress Committee or in the name of any other constituent body of the Indian National Congress. "This Hon'ble Court may be further pleased to restrain the defendants from user of the emblem, symbol and the flag of the Indian National Congress. "Any other relief which in the premises is deemed just. fit and proper."
(5) It was stated in the plaint that defendants I to 20 had sent a notice of a meeting to the members of the All India Congress Committee inviting them at Sapru House. New Delhi, on 22nd November, 1969. The requisition which the petitioner claimed to be illegal was said to be on the Agenda. Along with the plaint the petitioner also filed an application under Order 39 Rules 1 & 2, read with Section 151, Code of Civil Procedure, for a temporary injunction restraining the defendants till the final decision of the suit from using the name of the Indian National Congress, All India Congress Committee and its constituent bodies as also from using the emblem, symbol and flag of the Indian National Congress.
(6) The plaint was presented at the residence of the Senior Subordinate Judge, Delhi, on Sunday, the 16th November, 1969. On 17th November, 1969. Shri Gian Indar Singh. Subordinate Judge 1st Class, to whose Court the suit was assigned for disposal, issued show cause notice of the application for temporary injunction to the defendants for 19th November. 1969. Counsel for defendants I to 3 accepted notice on their behalf at the time the notice was ordered to be issued. On 19th November, 1969, an application was made in this Court for transfer of the abovementioned suit to this Court. Notice of the application was ordered to be issued. The counsel for the petitioner as also of the other parties accepted the notice. The application was posted for hearing on 21st November, 1969, and on that day the suit was ordered to be transferred to this Court. It was also directed that the application for temporary injunction be heard by a Division Bench. Arguments were thereafter addressed on the said application by the counsel for the petitioner on 21st November 1969. The learned counsel did not conclude his arguments and the application was adjourned to 24th November, 1969, which was the next working day. On that day the counsel for the petitioner withdrew the application which was consequently dismissed.
(7) In the meantime, the requisitioned meeting was held on 22nd and 23rd November, 1969. In the meeting held on 22nd November. 1969, the following resolution was moved by Shri Ashoke Kumar Sen respondent, who, it may be stated, was also the counsel for a number of defendants at the time of the hearing of the application for temporary injunction :- "THEacceptance of the Prime Minister's Note, embodying a radical programme, by the Bangalore Session of the All India Congress Committee and the bold steps taken by her to nationalise the major Banks created a sense of confidence in the masses that the progressive and socialist policies of the Congress would be fully carried out. The resolution of the Congress Working Committee passed on the 25th August. 1969. generated the hope that the unity necessary for the full and effective implementation of the said policies and programme would be brought about. Unfortunately the wind of change, which has been welcomed widely by the Nation, appears to have generated tensions within the party which threaten the execution of these basic policies to which Congress stands committed. It is evident that the declared policies of the Congress cannot be fully implemented unless the Congress Organisation as a whole is attuned to this purpose and given its whole-hearted cooperation, particularly at its top level. The A.I.C.C.. therefore, resolves that the programme of electing a new Congress President in December, 1969. when the term of the present President would have ordinarily come to an end, be undertaken on the basis of present Delegates and steps to that end be taken without delay so that the election of new President is completed by 30th December, 1969."
(8) On 24th November, 1969, the present petition was filed by the petitioner. The petitioner enclosed with the petition an extract from The Hindustan Times containing the report of the speech alleged to have been made by Shri Ashoke Kumar Sen respondent at the above meeting. The report was as under :- "ILLEGALaction. Mr. A. K. Sen told the Aicc the Congress Working Committee had acted illegally in rejecting the requisition for an early election of the party President. Mr. Sen denied that the resolution implied censure of Mr. Nijalingappa. Mr. Sen said the resolution only wanted a new President to be elected after Mr. Nijalingappa's normal term ended at the end of December. How, could it have been interpreted as censure unless it cut short his normal term. Mr. Sen said the CWC's decision had made the Congress the laughing stock of the nation. It was not the requisitionists who had brought disrepute to the Congress, but the Nijalingappa faction. He referred to the provision in the Congress Constitution that any decision of the Working Committee relating to Constitution had to be ratified by the Aicc within six months, and said Mr. Nijalingappa had no plans to convene the Aicc before this deadline and had, in fact, been avoiding it. Instead of accepting the wishes of the majority of the Aicc members Mr. Sen said the Cwc had sought to make out that Mr. Nijalingappa was being dislodged. The Congress President and his supporters in the States had adopted every device to prevent delegates from coming here. But braving all threats of dire consequences, they had come in large numbers. This provided a fitting answer to these threats. He charged the Nijalingappa faction with trying to remove from the party all supporters of Mrs. Gandhi and her bold economic policies. Why did not Mr. Nijalingappa and his friends come to this meeting and take the verdict of the members, he asked. Why should they pass resolutions behind closed doors and release them to the Press ? Was it not because they were not sure of majority support in the AICC?"
(9) The petitioner claims that the respondent was guilty of gross criminal contempt as his speech interfered with and prejudiced the proper trial of the suit. The aforesaid speech, it was further stated, had the effect of converting the trial pending before the Court into a trial by newspapers.
(10) The petition has been resisted by the respondent. He has denied that the extract from the Hindustan Times correctly reported his speech in moving the resolution. The respondent further stated:- "......I had moved the said Resolution improptu. I said that since more than 20% members of the A.I.C.C. had sent in the requisition, it was incumbent on the Working Committee to call the said requisitioned meeting according to our reading of the Congress Constitution and that on their refusal to do so, the A.I.C.C. members were entitled to meet themselves and pass the said Resolution. I did say that the said Resolution was not intended to censure the President, but was only meant to meet an emergency situation arising due to the necessity of electing a successor to Shri Nijalingappa. It is true that I said that any decision of the Working Committee postponing organisational elections had to be ratified within six months and if it was not so ratified, it would be inoperative. This was my interpretation of the Constitution. which I was entitled to give in our domestic discussions for the benefit of the members of the A.I.C.C. in appreciating the questions involved and in considering and passing the Resolutions in the said requisitioned meeting and in regular meetings that followed. I did say that it was unconstitutional for the President, if reports to that effect are correct, to threaten members from attending the requisitioned meeting, I did not use expressions like 'Nijalingappa faction', nor did I refer to any expulsion of Shrimati Gandhi's supporters by the alleged faction. T did say that Shri Nijalingappa was invited to preside over the meeting and he should have come and attended the same and accepted the verdict of the meeting which would have been conducted by them . . . . . "
(11) The respondent asserts that he did not know single word relating to the pending suit and confined only to the question of the resolution for which the requisition had been sent and moved it for acceptance by the members present in the meeting. The respondent has denied that his conduct tended to bring the authority and the administration of law into disrespect or disregard and that his utterances had a tendency to prejudice a proper trial of the suit. The respondent has further stated:- "........Isubmit that the petitioner had, by choosing to bring a purely domestic matter before the Court and by making the same the subject matter of the litigation, created the situation whereby the sheer necessity of the domestic forum, the members of the Aicc had to discuss matters which he had chosen to drag to the Court........"
(12) When the petition came up for hearing on November 27. 1970. an additional affidavit was filed on behalf of the petitioner. Enclosed with the affidavit was an extract from the Congress Bulletin containing the following report about the speech of the respondent: "MOVING the resolution Shri Sen said the requisition submitted to Shri Nijalingappa was perfectly valid but the meeting was not called because the majority was on the side of the Prime Minister Smt. Indira Gandhi. They knew that they had no majority and were afraid to call the A.I.C.C. The Working Committee had acted illegally in rejecting the requisition. The resolution did not imply any censure of Shri Nijalingappa's normal term (sic) ended at the end of December. The A.I.C.C. was quite competent to reverse the resolution adopted by the Working Committee at Faridabad, postponing the organisational elections. The real reason for the Working Committee's rejection of the requisition was to perpetuate Shri Nijalingappa and the Working Committee when a majority of A.I.C.C. members had sought early elections. The Working Committee decision had made the Congress the laughing stock of the nation. It was not the requisitionists who had brought disrepute to the Congress, but the Nijalingappa faction. Referring to the provision in the Congress Constitution that any decision of the Working Committee relating to the Constitution had to be ratified by the A.I.C.C. within six months, Shri Sen said Shri Nijalingappa had no plans to convene the A.I.C.C. before the deadline and had, in fact, been avoiding it. Instead of accepting the wishes of the majority of the A.I.C.C. members the Working Committee had sought to make out that Shri Nijalingappa was being dislodged. The Congress President and his supporters .in the States had adopted every device to prevent delegates from attending the requisitioned meeting. But braving all threats of dire consequences, they had come in large numbers. This provided a fitting answer to these threats."
(13) We have heard Mr. Lekhi on behalf of the petitioner and Mr. Kumaramanglam on behalf of the respondent, and are of the opinion that the respondent has not been shown to be guilty of contempt of court. The concept of the contempt of court has two facets. One facet represents criminal contempt which consists of words or acts obstructing, or tending to obstruct, the administration of justice. The other facet pertains to contempt in procedure and consists of disobedience to the judgments, orders, or other processes of the court involving a private injury. (See Halsbury's Laws of England, Third Edition, Volume 8, page 2). We are in the present case concerned with the criminal contempt. This right is exercised in India by all courts when contempt is committed in fade curaie and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts. Formerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India it is a part of the powers of the Supreme Court and the High Courts. There are many kinds of contempts. The chief forms of contempt are insult to judges, attacks upon them, comment on pending proceeding with a tendency to prejudice fair trial, obstruction to officers of the court' witnesses or the parties, abusing the process of the court breach of duty by officers connected with the court and scandalising the judges of the courts. The last form occurs, generally speaking, when the conduct of a party tends to bring the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the courts into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. (See E. M. Sankaran Namboodripad v. T. Narayanan Nambiar, The basic approach in deciding whether a person because of his acts, speech or writing is guilty of contempt of court. is that any act done or written or published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or io interfere with the due course of justice or the lawful process of the Court is a contempt of court. See R. v. Gray, 1900-2 Ob 360)(2) The judicial Committee in the case of Devi Prasad Sharma v. King Emperor, 70 Indian Appeals 216 at p. 224,(3), observed: "........the test applied by the x x x x Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law."
(14) The above criterion was referred to with approval by Shah J., while speaking for the Court in re: P. C. Sen, Air 1970 Sc 182.(4) It was also observed that if the impugned speech was calculated to interefere with the course of justice, it was liable to be declared a contempt of the court even if it be assumed that the contemner had not intended thereby to interfere with the due course of justice.
(15) In the light of the above principles, it has to be seen whether the impugned speech of the respondent was calculated to obstruct or interfere with the course of justice and the due administration of law. During the course of hearing, Mr. Lekhi, on behalf of the petitioner. has stated that he relies upon the report of the speech made by the respondent as published in the Congress BULLETIN. There was some controversy as to whether the report of the speech published in the Congress Bulletin is authentic and correctly represents the speech of the respondent or not. This aspect of the matter. however, need not detain us because we are of the opinion that the speech of the respondent, even as reported in the Congress Bulletin, was not in the circumstances of the case calculated to obstruct or interfere with the course of justice and the due administration of the law. The broad facts are that a split took place in the Congress party and it was divided into two groups. A requisition purporting to be signed by more than 400 members for calling a meeting of the All India Congress Committee was sent. The requisition was turned down by the Working Committee presided over by Shri Nijalingappa. Another meeting of the Congress men was held under the chairmanship of Shrimati Indira Gandhi, and they decided to convene a meeting of the All India Congress Committee in accordance with the requisition on November 22/23, 1969. The petitioner filed a suit challenging the validity of the aforesaid requisition and praying for an injunction restraining the respondents from holding a meeting in the name of and under the grab of the Congress and from using the flag and other symbols of the Congress, The petitioner also filed an application for temporary injunction to restrain the respondents from using the name of the Indian National Congress and from using its flag and other symbols. Arguments were addressed by the learned counsel turn the petitioner on that application but they did not conclude before the dates of the meeting. No order as such was made on the upplication before the dates of the meeting and- no temporary injunction was granted. The respondent in the meeting moved the resolution which was the subject matter of the requisition. His speech, as reported in the Congress Bulletin was germane to the resolution and gave reasons in justification of the requisition of the meeting. We are not concerned with the question as to whether those reasons were politically valid and otherwise cogent or not. At the same time we have to bear in mind that what the respondent did was what is normally done by a person moving a resolution. No temporary injunction had been issued and it cannot be said that on account of the petitioner's suit, even in the absence of such an injunction, a self imposed ban had to be placed by those participating in the meeting upon all discussion and speeches on the resolution, as also those pertaining to the requisition and the meeting. We have consequently no doubt in our mind that in the context and circumstances the speech was made it was not calculated to obstruct or interfere with the course of justice and the due administration of the law. It is significant that there was no reference to the suit brought by the petitioner in the speech. The fact that there was mention of some matters in the speech. which had earlier been referred to in the plaint filed by the petitioner. would not detract from the above conclusion. The split in the most important political organisation in the country was bound to rouse passions, generate controversies create strong feelings and also possibly result in harsh words. It would, in our opinion, be not correct to hold that all discussions about the propriety and validity of the requisition and the meeting became barred because of the suit brought by the petitioner, even though the above discussion took place in that very meeting. It would indeed be stretching things too far to hold that those, who participated in that discussion, would be liable to be proceeded against for contempt of court. The observations of their Lordship of the Supreme Court in the case of Riswan-ul-Hasan v. The State of Uttar Pradesh, 1953 Scr 581 (5) in this connection have a bearing and may be reproduced with advantange. The court stated : ''AS observed by Rankin, C.J., in Anantalal Singha v. Alfred Henry Watson, (1931) 58 Cal 884 at 895.(6) the jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice and that the purpose of the court's action is a practical purpose and it is reasonably clear on the authorities that the court will not exercise its jurisdiction upon a mere question of propriety."
(16) The above observations were relied upon by the Court in the case of Security & Finance (P) Ltd. v. Dattaraya Ragav Agge, while holding that an arbitrator proceeding with arbitration and giving his award after receiving notice of a suit in a civil court challenging the agreement containing the arbitration clause was not guilty of contempt of court.
(17) Mr. Lekhi, on behalf of the petitioner, submits that the respondent represented as counsel some of the defendants when arguments were heard in the application for temporary injunction. It is urged on the basis of the observations on page 8 of Halsbury's Laws of England,. Third Edition Volume 8, as well as in re. P. C. Sen, that comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. There can hardly be two opinions about the soundness and desirability of the above principle. So far as the members of the Bar are concerned, they occupy an exalted position in our judicial system and this in the very nature of things carries with itself heavy responsibilities. In view of the importance of their role, the inembers of the Bar have to ensure that nothing is done which may be calculated to obstruct or interfere with the course of justice. At the same time. we have to bear in mind that if the facts and circumstances do not prove a case of contempt of court, a person should not be held to be answerable because he happens to be a counsel for one of the parties. in the present case, as observed earlier, it cannot be said that the impugned speech of the respondent was calculated to obstruct or interfere with the course of justice and the due administration of the law. As such, the respondent cannot be held to be guilty of contempt of court even though. he was counsel for some of the defendants at the time of the hearing of the aplication for temporary injunction.
(18) Reliance has been placed on behalf of the petitioner upon P. C. Sen'.s case to which reference has been made earlier. In that case the State of West Bengal issued an order on August 23, 1965, in exercise of the powers conferred by the defense of India Rules placing restrictions upon the right of persons carrying on business in milk products and especially dealers in sweetmeats made out of Channa. In a petition moved by Nani Gopal Paul the High Court of Calcutta declared the said order to be "unreasonable piece of delegated legislation made in arbitrary exercise of power under Rule 125 without any justification in law and regardless of the purpose for which such order may be made", and issued an injunction against the State of West Bengal from enforcing that order. The State of West Bengal thereafter issued another order on November 18. 1965. This order too was challenged as being mala fide and an injunction was sought by the petitioner for restraining the State of West Bengal and another officer from giving effect to that order. Rule was issued on the petition by a learned Judge of Calcutta High Court on November 23, 1965. The contemner, who was the Chief Minister of West Bengal, broadcast a speech on All India Radio, seeking to justify the propriety of the Control Order. In the course of that speech the Chief Minister characterised the preparation of any food with milk in West Bengal as tantamount to crime. He also announced his version about the validity of the Order, the reasons why it was promulgated, and asserted that it was an order made bona fide and in the interests of the public and that those who resisted it, were acting contrary to the public interest. The above criticism was held by the Calcutta High Court to be unwarranted and prima facie calculated to obstruct the administration of justice. The Calcutta High Court accordingly held the Chief Minister to be guilty of contempt of court and the decision was affirmed by the Supreme Court. There can. in our opinion, be no analogy between the facts of the above-mentioned case and those of the present. Whether a particular speech or writing or other conduct of a person constitutes contempt of court would ultimately depend upon the facts of each case. If on the facts of the case the Court comes to the conclusion that there has been calculated obstruction or interference with the course of justice and the due administration of the law, the decision in another case on different facts cannot be of much avail. It is only the principle of law enunciated in an earlier case, which can afford assistance, but the same cannot be said of the conclusion arrived at on the facts of an individual case.
(19) There is also one other aspect of the matter to which we would like to advert. A matter of great national importance may on occasions agitate vast sections of the population. Such a matter is bound to be discussed on the platform and in the press; the right to discuss being inalienable and the very essence of free and democratic society. "The public discussion of that matter, in our opinion, cannot necessarily be stifled because of the filing of a suit by an individual in a court of law about that matter of national importance. To hold otherwise would result in the startling situation wherein any individual may place a blanket ban and embargo on public discussion of matters of national importance by just filing a suit in a court of law about those matters. The correct approach in this respect, in our opinion would be that it the matter is ex fade of a judicial nature, any expression of opinion about the matter, which has to be decided by the court of law, would be actionable. To take an illustration, suppose A is accused of the murder of B and the murder has nationwide repercussions. Any condemnation of the murder of B would not amount to contempt of court, but any observation made by speech or writing in public on the subject whether A is guilty of the murder of B or not would attract the law of contempt of court, as that is a matter which ex facie has to be decided by a court of law. As against that, there may be matters of national importance which are ex fade not of a judicial nature. In such a case, the filing of a suit would not have the effect of stifling all public discussion of that matter national importance. The public discussion, which followed the split in the Congress, pertained, it may be argued with some plausibility, to a matter falling in the latter category. We need not, however, dilate upon this aspect, because of the conclusion at which we have arrived earlier that the speech of the respondent was not calculated, in the circumstances, to obstruct or interfere with the course of justice and the due administration of the law.
(20) The petition is consequently dismissed and the rule is discharge.