Bombay High Court
Vishwanath vs E.S. Venkatramaih And Others on 2 March, 1990
Equivalent citations: (1990)92BOMLR270, 1990CRILJ2179
JUDGMENT M.M. Qazi, J.
1. The interview which Shri E. S. Venkatramaih, the former Chief Justice of India, gave to the noted Journalist Shri Kuldeep Nayar on the eve of his retirement i.e. on 17-12-1989, has given rise to the present petition for contempt. The news item was published in several newspapers including 'LOKMAT' daily and 'DAINIK RASHTRADOOT', Nagpur and therefore, the respondents Nos. 3, 4 and 5 have been joined as contemners along Shri E. S. Venkatramaih and Shri Kuldeep Nayar - respondent Nos. 1 and 2 respectively. The petitioner is a practising lawyer of this Court and a former Chairman of the Maharashtra Bar Council. By this petition, he has brought to the notice of this Court what he termed as "gross, unwarranted contempt" of this Court committed by the respondents.
2. According to the petitioner, the remarks of the former Chief Justice scandalise the entire judiciary in the country and lower its authority and prestige in the eyes of the litigants and the people at large. He has further contended that the respondents Nos. 3, 4 and 5 having published part of that interview have also contributed in scandalising the judiciary as a whole and lowering its authority and prestige. Consequently, they are also guilty of contempt. The petitioner has invited our attention to the following portion, which is the very first sentence in the interview given by the former Chief Justice :
"The judiciary in India has deteriorated in its standards because such Judges are appointed, as are willing to be "influenced" by lavish parties and whisky bottles."
According to Mr. Palshikar, the aforesaid sentence can be interpreted as if all the Judges, who are appointed, are such who are willing to be influenced by lavish parties and whisky bottles. This, according to him, clearly falls within the mischief of "Criminal Contempt", as defined in S. 2 of the Contempt of Courts Act, 1971, the relevant portion of which is reproduced below :
"2(c) ..... 'Criminal Contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which -
(i) scandalises or tende to scandalise, or lowers or tends to lower the authority of, any Court; or
(ii) and (iii) ................"
Mr. Palshikar contended that the above statement scandalises the entire judiciary in the country, and therefore, the said statement clearly amounts, to contempt. Mr. Badar, learned Government Pleader, appearing on behalf of the State has repelled this argument by submitting that the above statement refers to only such Judges who are willing to be influenced by lavish parties and whisky bottles. The statement, therefore, according to him, is qualified and cannot be read de hors the rest of the interview. It is also not in such general terms as alleged.
3. Mr. Palshikar has taken exception to the following portion in the statement, which read as under :
"In every High Court', Justice Venkatramaih said, 'there are at least 4 to 5 Judges who are practically out every evening, wining and dining either at a lawyer's house or a foreign embassy. He estimates the number of such Judges around 90 and favours transferring them to other High Courts.
*** *** *** Chief Justice Venkataramaih reiterated that close relations of Judges be debarred from practising in the same High Courts. He expressed himself strongly against sons, sons-in-law and brothers of Judges appearing in the courts where the latter are on the Bench. Most relations of Judge are practising in High Courts of Allahabad, Chandigarh, Delhi and Patna.
According to Chief Justice Venkatramaih, practically in all the 22 High Courts in the country close relations of Judges are thriving. There are allegations that certain judgments have been influenced through them even though they have not been directly engaged as lawyers in such cases. It is hard to disregard the reports that every brother, son or son-in-law of a Judge, whatever his merit or lack of it as a lawyer, can be sure of earning an income of more than Rs. 10,000/- a month."
Mr. Palshikar contended that the former Chief Justice has not named those 90 Judges in the interview, and therefore a doubt is created in the mind of the people in respect of everyone of them, he may be one of those 90 Judges who spends his evening in wining and dining with at lawyer's house or a foreign Embasy. According to the petitioner, the utterances of the former Chief Justice scandalise the entire judiciary in the country and since the words are coming from a person who held the office as Chief Justice of India, have created a thick cloud over the entire judiciary which is being looked upon with contempt by the entire nation. The petition recites :
"He has stated that the way of appointments of majority of Judges goes through glittering parties and expensive liquor bottles. If the words of the former Chief Justice of India are to be believed, majority of the Judges, owe their appointments to such parties and not to their integrity and knowledge for which alone they hate been appointed. Such allegation cannot in any event be a fair and bona fide criticism of the manner of appointment of Judges. It cannot be a fact. The petitioner alleges and believes that it is not a fact."
Commenting on the interview given by the former Chief Justice, Mr. Palshikar submitted that the former Chief Justice has crossed the boundary between fair criticism and contempt of court when he uttered that about 90 Judges indulge in wining and dining at the cost of lawyers. According to him, the statement is ex facie scandalous and casts reflection on the interest, integrity and independence of the Courts in India and the Judges thereof. The allegations, according to him, are so wild and pervading that they are lowering down the prestigage of judiciary in India, more so because they are coming from a person who was the former Chief Justice of India.
4. When the petition came up for hearing on 22-2-1990 the Advocate General appeared and raised an objection about maintainability of the petition in view of the decision , P. N. Dude v. P Shiv Shankar. In view of this objection in regard to maintainability of the petition, Mr. Palshikar requested for time. The case was accordingly adjourned to 1-3-1990 to enable Mr. Palshikar to obtain the consent of the Advocate General or to satisfy this Court that the petition is maintainable even without the consent of the Advocate General. Mr. Palshikar instead of obtaining the consent of the Advocate General, as required under Section 15(1)(b) of the Contempt of Courts Act, filed a detailed pursis contending that the petition has been filed by him as a narrator bringing to the notice of this Court the interview given by the former Chief Justice of India to a noted Journalist Shri Kuldeep Nayar, invoking the jurisdiction of this Court to take a suo motu action, for contempt of court, against the maker and the publishers of the said interview. To quote his exact words, they are as follows :
"It has always been the contention of the petitioner that suo motu action for this criminal contempt is called for in the instant case."
The pursis further recites that there is a conflict of judicial opinion as to whether the contempt petition initiated by a private person is maintainable without obtaining the consent of the Advocate General and, therefore, he submitted that in view of the grave nature of the contempt, it is necessary that this Court should take suo motu action against the maker of the statement and the publishers thereof. Mr. Badar has appeared on behalf of the State. He has also filed a detailed Counsel's Note.
5. After hearing the counsel and after going through the written submissions, we are of the view that the petition is liable to be dismissed on the ground of maintainability as well as on merits. In regard to maintainability of the petition, it is necessary to examine S. 15 of the Contempt of Courts Act, which reads as under :
"15. (1) In the case of a criminal contempt, other than a contempt referred to in S. 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by -
(a) the Advocate-General, or
(b) any other person, with the consent in writing of the Advocate-General, or
(c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer."
From the above section, it is clear that there are only three modes as to how a contempt petition can be moved -
(1) The Court can initiate the proceedings suo motu, or (2) on a motion made by the Advocate-General, or (3) on a motion made by any other person, with the consent in writing of the Advocate-General.
The law does not recognise any other method or mode. As we have already pointed out above, the present petition has been filed by Mr. Palshikar, a practising lawyer of this Court, without obtaining the written consent of the Advocate-General. He has also categorically stated that he has merely brought the facts to the notice of this Court for suo motu action to be taken by the Court. He has asserted that such a petition is maintainable and in support of his contention he has addressed this Court and also filed a detailed pursis. Mr. Badar has vehemently opposed the tenability of such a petition. Relying on S. 15(1)(b) of the Contempt of Courts Act, he has submitted that the consent of the Advocate-General is a condition precedent.
6. Though Mr. Palshikar has stated in the pursis that there is a conflict of judicial opinion as to whether the consent of the Advocate-General is necessary or not, he has not been able to demonstrate the same. We think, this assumption of Mr. Palshikar has no basis. The decision (cited supra) fully supports the contention of the Advocate-General and the Government Pleader that a petition filed by a private person without the written consent of the Advocate-General is not maintainable. Hon'ble Sabyasachi Mukharji, J. has observed in para 37 of the judgment as follows :-
"It was contended that there was no doctrine of necessity applicable in this case because even if the Attorney-General or the Solicitor-General does not give consent a party is not without a remedy and can bring this to the notice of the Court. Discretion vested in law officers of this Court to be used for a public purpose in a society governed by the rule of law is justiciable. Indeed, it was gone into in the case of Conscientious Group (supra) and it will 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 as was argued by Shri Ganguly 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. As mentioned hereinbefore there are three different channels, namely, (1) the Court taking cognizance on its 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 have 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. But irrespective of that there was right granted to the citizen of the country to move a motion with the consent."
In the same para, the observations of Sanyal Committee appointed to examine this question have been quoted, which read thus -
"In the case of criminal contempt, not being contempt committed in the face of the Court, we are of the opinion that it would lighten the burden of the Court, without any way interfering with the sanctity of the administration of Justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large. Indeed, some High Courts have already made rules for the association of the Advocate-General in some categories of cases at least."
His Lordship Sabyasachi Mukharji, J. has observed in para 39 of the judgment as under :
"39. Our attention was drawn by Shri Ganguly to a decision of the Allahabad High Court in G. N. Verma v. Hargovind Dayal, where the Division Bench reiterated that Rules which provide for the manner in which proceedings for contempt of Court should be taken continue to apply even after the enactment of the Contempt of Courts Act, 1971. Therefore, cognizance could be taken suo motu and information contained in the application by a private individual could be utilised. As we have mentioned hereinbefore indubitably cognizance could be taken suo motu by the Court but 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 S. 15 of the Act that could be investigated in an application made to the Court."
His Lordship S. Ranganathan, J. delivered a separate judgment and observed in para 62 as under :
"62. For purposes of convenience, I may sum up my conclusions. They are :
(a) This petition, if treated as one filed under S. 15(1) read with R. 3(a) is not in proper form, and if treated as one filed under R. 3(b) and 3(c), is not maintainable as it is not filed by the Attorney-General/Solicitor-General or by any person with his consent.
*** *** *** Thus, there appears to be no conflict in the opinion expressed by Their Lordships in their separate judgments that if a motion is moved by any private person for taking action under the Contempt of Courts Act, that has to be with the consent in writing of the Attorney-General or the Solicitor-General.
It is not the case of the petitioner that he applied for consent of the Advocate-General and that it was refused. On the contrary, the Advocate-General appeared and objected to the maintainability of the present petition on the ground that his consent was not obtained. We, therefore, adjourned the case to enable Shri Palshikar to obtain the consent as required under S. 15(1)(b) of the Contempt of Courts Act, but Mr. Palshikar refused to obtain the consent. On the contrary he has stated that he has brought the facts to the notice of the Court and requested the Court to take suo motu action. In view of this, there can be no doubt that the present petition which has been filed by a private person without the consent in writing of the Advocate-General is not tenable.
7. In the decision reported in 1986 Cri LJ 320, Harish Chandra Mishra v. The Hon'ble Mr. Justice S. Ali Ahmed, the Full Bench of the Patna High Court has also taken a view that the proceedings for initiation of criminal contempt by a private individual, without the written consent by the Advocate-General, are not maintainable. According to the Full Bench, the framers of the Act consciously wanted to put a bar on the power of private individuals while charging any person for having committed criminal contempt of a Court with an object to curtail vexatious petitions for setting personal scores, being filed by persons who are purporting to uphold the majesty and dignity of Court. It is further observed that a criminal contempt is primarily a matter between the Court and the contemner and not a matter between a citizen and the contemner. Every citizen has no unfettered right in this respect because in some cases he may set more out of personal prestige and vendetta than out of motive to uphold the dignity of Court.
8. In the case of Dr. J. N. Gupta v. Dr. O. P. Chakarvarty reported in 1975 Cri LJ 164, Division Bench of the Allahabad High Court, while interpreting S. 15(1) of the Contempt of Courts Act, 1971, has also taken a view that S. 15(1) fixes the limit to only three types of motion. As we have pointed out above, it excludes any private citizen from setting such criminal contempt in motion unless he makes the motion with th consent, in writing, of the Advocate-General.
9. Mr. Badar, the learned Government Pleader, has invited our attention to the following portion from the interview -
"Sad and sombre Chief Justice Venkataramaiha said that he had vainly tried to bring to the notice of Judges the Law Commission Report which has cited examples to prove how Judges compromise their position and prefer to be seen in the precincts of Government houses and elsewhere."
According to him, the above statement shows how much sad and disturbed the former Chief Justice was on account of the state of affairs prevailing in the judiciary. The entire statement has to be judged and appreciated in this light. The entire interview appears to have been given with an idea to improve the judiciary. Mr. Badar has, in our view, rightly relied on the following portion of decision of the former Chief Justice of India in the case , S. P. Gupta v. President of India where he observed in para 1256 as under :-
"A Judge should be independent of himself. A Judge is a human being who is a bundle of passions and prejudices, likes and dislikes, affection and ill-will, hatred and contempt and fear and recklessness. In order to be a successful Judge these elements should be curbed and kept under restraint and that is possible only by education, training, continued practice and cultivation of a sense of humility and dedication to duty. These curbs can neither be bought in the market nor injected into human system by the written or unwritten laws.
*** *** *** The life of a Judge does not really call for great acts of self-sacrifices; but it does insist upon small acts of selfdenial almost every day."
10. Mr. Badar in his terse argument submitted that the statement of the former Chief Justice is not at all attributed to the Judges who are not indulging in wining and dining every evening either at a lawyer's place or a foreign embassy. He has, in our view, rightly laid emphasis on the words "sad and sombre" and submitted that the noted Journalist did not fail to notice the fact that the former Chief Justice felt hurt while giving expressions to his feelings.
11. Mr. Badar invited our attention to the Writ Petn. (Civil) No. 126 of 1990 filed before the Supreme Court on behalf of the State Legal Aid Committee, Jammu and Kashmir, through its Chairman Shri Bhim Singh, Advocate, Supreme Court, New Delhi. The full text of the interview is reflected in the petition. Mr. Badar, therefore, contended that Their Lordships of the Supreme Court did not think that the impugned statement amounted to contempt of Court and, therefore, no action was taken for contempt. Mr. Badar, in our view, has rightly contended that had the statement amounted to contempt, than Their Lordships of the Supreme Court could have taken suo motu action on the basis of the material that was placed before them. It was prayed in the said petition to issue an appropriate writ, direction or order commanding the Union of India or any other appropriate authority to disclose the names of 90 Judges of the different High Courts in India as mentioned by the former Chief Justice of India E. S. Venkataramaih. This writ petition came to be dismissed by the Supreme Court vide order dated 1-2-1990, which reads thus :
"In the course of submission, Mr. Garg appearing for the petitioner states that all the prayers excepting prayer No. 1 may be deleted. We have considered the petition with reference to prayer No. 1 and are satisfied that this petition should not be entertained. It is accordingly dismissed."
12. Mr. Palshikar contended that had the former Chief Justice of India disclosed the names of 90 Judges, it would have been a different matter. But, that not having been done, every Judge of the High Court becomes suspect. We do not think, there is any substance in this contention. We are reminded of Chinese proverb "As long as you are up-right, do not care if your shadow is crooked." It is not possible to appreciate as to how every Judge would become vulnerable merely because the names are not disclosed. It is obvious from the statement as a whole that it refers only to such Judges who are practically indulging in every evening in winning and dining at a lawyer's place or a foreign embassy or whose sons, sons-in-law and brothers are minting money by abusing their position. Having regard to these facts, we do not think it is a fit case where suo motu action for contempt is called for as requested by the petitioner. The petition is accordingly dismissed on merits as well as on the point of maintainability.
13. Petition dismissed.