REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CONTEMPT PETITION (CRL.) NO. 11 OF 1990
Dr. Subramanian Swamy …… Petitioner
Vs.
Arun Shourie …… Respondent
R.M. LODHA, CJI.
WITH
CONTEMPT PETITION (CRL.) NO. 12 OF 1990
JUDGMENT
In the issue of Indian Express of August 13, 1990, an editorial
was published bearing the caption “If shame had survived”. The editorial
reads as under:
“If shame had survived”
The legal opinion that the former Chief Justice of India, Mr.
Y. V. Chandrachud, has given on the Kuldip Singh
Commission’s report is a stunning indictment. Succinct,
understated to the point of being deferential, scrupulously
adhering to facts and law, eschewing completely the
slightest attribution of any motive to the Commission, the
opinion is a model of rectitude. Nothing in the report
survives it “evidence” that it was agreed would not be
pressed relied on as a fulcrum; evidence of the one witness
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Page 1
who was the hub of the decisions wholly disregarded;
indictments framed on “probable possibility”, theories
invented to read meanings into documents and the manifest,
straightforward explanation ignored; the Commission itself
as well as the energetic prosecutor himself declaring one
day that neither had a shred of evidence which cast a doubt
on Hegde and the very next day declaring a conclusion;
refusing to common witnesses for cross-examination on the
pretext that the Commission did not have the power to call
them – this in the face of clear judgments to the contrary;
then invoking a section of the Indian Evidence Act which
applies to a person making a dying declaration; ignoring the
fact that the man who is said to have been benefited has lost
Rs.55 lakh which he deposited; insinuating – and building an
entire indictment on the insinuation – that the builder had
fabricated a front, when the actual record shows that he was
doing everything openly and with all the formalities which the
law required; ignoring the fact that the land was to be given
to the builder at three times the cost of acquisition and that
on top of it development charges were to be levied from 4 to
6 times the cost of acquisition; ignoring entirely the fact that
the land was never transferred and that it was not
transferred solely because of the then Chief Minister’s
insistence that rules be framed under which all such cases
would be dealt with. It is the longest possible list of
suppresso veri suggesto falsi.
If there had been any sense of honour or shame, a Judge
would never have done any of this. If there were any
residual sense of honour or shame, the Judge having done
any of it and having been found doing it, would have vacated
his seat. But this is India. Of 1990, the Commissioner
Kuldip Singh having perpetrated such perversities will
continue to sit in judgment on the fortunes and reputations of
countless citizens. He will continue to do so from nothing
less than the Supreme Court of India itself.
Such is our condition. And so helpless are we that there is
nothing we can do about such a “Judge”. Save one thing.
The only way to mitigate the injuries that such persons inflict
on citizens is for all of us to thoroughly examine the
indictments or certificates they hand out. Only that exercise
will show up these indictments and certificates for the
perversities which they are and only in that way can their
effect be diluted. “Who has the time to read voluminous
reports, to sift evidence?” But if the issue is important
enough for us to form an opinion on it, it is our duty to find
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the time to examine such reports, to examine as well the
conduct of the commissioners who perpetrate them.”
2. It so happened that Justice Kuldip Singh, the then sitting
Judge of the Supreme Court, was appointed as Chairman, Commission of
Inquiry under the Commissions of Inquiry Act, 1952 (hereinafter referred
to as ‘1952 Act’) to probe into alleged acts of omissions and commissions
by Shri Ramakrishna Hegde, the former Chief Minister of Karnataka. The
one man Commission headed by Justice Kuldip Singh submitted its report
on 22.06.1990.
3. These two contempt matters, one by Dr. Subramanian
Swamy
1
and the other
2
suo motu arise from the editorial published in
Indian Express as quoted above. In the contempt petition filed by Dr.
Subramanian Swamy on 23.08.1990 under Section 15 of the Contempt of
Courts Act, 1971 (hereinafter referred to as, “1971 Act”) against the then
Editor of Indian Express, Mr. Arun Shourie, it is contended that the editorial
is a scandalous statement in respect of a sitting Judge of the Supreme
Court of India and the judiciary. It lowers the authority of this Court as well
as shakes public confidence in it and amounts to criminal contempt of this
Court. It is submitted that unless this Court acts promptly and if necessary,
1
2
[Contempt Petition (Crl.) No.11 of 1990 Dr. Subramanian Swamy v. Arun Shourie]
[Contempt Petition (Crl.) No.12 of 1990 In the matter of Mr. Arun Shourie]
3
Page 3
suo motu in the matter, sitting Judges would be helpless and unable to
defend themselves, and in the process, public confidence in judges and
the courts would be eroded.
4. It is pertinent to notice here that the then Chief Justice of India
obtained opinion of the Attorney General for India in the matter. The then
Attorney General Shri Soli Sorabjee in his opinion dated 27.08.1990 noted
that the editorial had, prima facie, overstepped the limits of permissible
criticism and the law of contempt, as was existing in the country, did not
provide for truth as defence and, therefore, he opined that an explanation
was called for and a notice could be issued for that purpose. In his view,
the question whether the contempt of a Commission or Commissioner
appointed under the 1952 Act tantamounts to contempt of the High Court
or Supreme Court of which the Commissioner is member needs to be
authoritatively settled by the Supreme Court in view of the reoccurrence of
the issue.
5. On 03.09.1990, the suo motu contempt matter and so also the
contempt petition filed by Dr. Subramanian Swamy came up for
consideration before the three Judge Bench of this Court headed by the
Hon’ble the Chief Justice. The proceeding of 03.09.1990 reads as under:
“In Re : Arun Shourie and Anr.
4
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We have seen the editorial in the “Indian Express” of
August 13, 1990. We have obtained the opinion of the
Attorney General of India in the matter. We consider that
paragraphs 2 and 3 of the editorial tend to fall within the
definition of ‘criminal contempt’ in Section 2(c) of the
Contempt of Courts Act, 1971. We, therefore, direct that
notice returnable on 8
th
October, 1990 be issued to the
alleged contemners calling upon them to show cause why
proceedings for contempt of this Court under Article 129 of
the Constitution should not be initiated against them in
respect of the offending editorial published by them. The
contemners shall be present in the Court in person on 8
October, 1990. A copy of the opinion given by the Attorney
General in the matter should accompany the notice to be
issued to the contemners. They may file their affidavits in
support of their defence on or before 8
th
October, 1990.
Issue notice to the Attorney General of India to
appear and assist the Court in hearing the matter.
CONTEMPT PETITION NO. OF 1990 :
Learned Attorney General of India has also drawn our
attention to an issue of the ‘Current’ (August 25-31, 1990)
which contains an Article by M.V. Kamath. We will consider
that matter separately later on.
Dr. Subramanian Swamy vs. Mr. Arun Shourie:
Issue notice returnable on 8
th
October, 1990 stating
therein why contempt proceedings should not be initiated.”
6. Respondent Arun Shourie submitted his reply affidavit on
13.10.1990. We shall refer to his defence and objections at an appropriate
place little later. Suffice, however, to note at this stage that in the counter
affidavit, the respondent prayed that, in view of the sensitive nature of the
facts, he would choose to refrain from setting out those facts in the affidavit
but would prefer to put them in the form of a signed statement in a sealed
cover for the perusal of the Court which may be treated as an integral part
th
5
Page 5
of the counter affidavit. The Court, however, on 04.03.1991 rejected his
prayer and observed that the procedure suggested by the respondent was
not an acceptable procedure and was inconsistent with recognized form of
the pleadings. The respondent was granted liberty to withdraw the sealed
cover from the Court. He was given an opportunity to file additional
affidavit.
7. The matters remained dormant for many years. On
25.08.1998
3
, a three Judge Bench directed that these matters be placed
before a Constitution Bench.
8. This is how these matters have come up for consideration
before the Constitution Bench. We have heard Mr. Mohan Parasaran,
3
These contempt matters relate to comments made by the alleged contemnors against Shri Justice Kuldip
Singh after he had submitted his report as Chairman of the Enquiry Commission set up by the Central
Government.
In Contempt Petition No.9/90 an objection has been raised by Shri D.D. Thakur, the learned senior
counsel appearing for the alleged contemnor that the petition is not maintainable since consent of the
Attorney General for India or the Solicitor General for India was not obtained as required by Section 15 of
the Contempt of Courts Act, 1971. A question arises as to whether in the absence of the consent of the
Attorney General or the Solicitor General suo moto proceedings can be initiated against the alleged
contemnor. Shri D.D. Thakur has, however, submitted that since the alleged contempt arose more than one
year back, Section 20 of the Contempt of Courts Act, 1971 would operate as a bar against the initiation of
suo moto proceedings for contempt against the alleged contemnor.
In Contempt Petition No.11 and 12 of 1990 there is the opinion of the Attorney General
expressing the view that when a Supreme Court Judge is appointed as a Commissioner in a Commission
of Enquiry he does not carry with him all the powers and jurisdiction of the Supreme Court and the
functions discharged by him are statutory functions independent of the jurisdiction vested in the Supreme
Court and, therefore, the alleged contempt of a sitting Judge of the Supreme Court in relation to the
statutory functions discharged by him as a Commissioner cannot in law be regarded as a contempt of
Supreme Court itself.
The learned counsel for the alleged contemnors have urged that truth can be pleaded as a defence
in contempt proceedings and that the decision of this Court in Perspective Publications (Pvt.) Ltd. & Anr.
vs. State of Maharashtra, (1969) 2 SCR 779 needs re-consideration. In our opinion, the questions that arise
for consideration in these matters are of general public importance which are required to be considered by a
Constitution Bench. We, therefore, direct that the matters be placed before a Constitution Bench.
6
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learned Solicitor General and Mr. Ashok H. Desai, learned senior counsel
for the respondent.
9. It may be observed immediately that the learned Solicitor
General and learned senior counsel for the respondent in the course of
arguments agreed that for exercising the suo motu power for contempt
under Article 129 of the Constitution of India, the limitation provided in
Section 20 of the 1971 Act has no application. There is no challenge
before us about the legal position that there are no implied or express
limitations on the inherent powers of the Supreme Court of India and,
therefore, no limitations can be read into Article 129 of the Constitution.
10. The two principal questions that arise for consideration and
need our answer are as follows:
(i) When a sitting Supreme Court Judge is appointed as a
Commissioner by the Central Government under the 1952 Act, does he
carry with him all the powers and jurisdiction of the Supreme Court? In
other words, whether the functions which are discharged by the Supreme
Court Judge as a Commissioner are purely statutory functions independent
of the jurisdiction vested in the Supreme Court?
(ii) Whether truth can be pleaded as defence in contempt
proceedings?
7
Page 7
11. We shall take up the second question first. Some of the
common law countries provide that truth could be a defence if the
comment was also for the public benefit. Long back the Privy Council in
Ambard
4
held that reasoned or legitimate criticism of judges or courts is not
contempt of court. The Privy Council held:
“The path of criticism is a public way; the wrong headed are
permitted to err therein: provided that members of the public
abstain from imputing improper motives to those taking part
in the administration of justice, and are genuinely exercising
a right of criticism, and not acting in malice or attempting to
impair the administration of justice, they are immune. Justice
is not a cloistered virtue: she must be allowed to suffer the
scrutiny and respectful, even though outspoken, comments
of ordinary men.”
12. In Wills
5
the High Court of Australia suggested that truth could
be a defence if the comment was also for the public benefit. It said, “…The
revelation of truth – at all events when its revelation is for the public benefit
– and the making of a fair criticism based on fact do not amount to a
contempt of court though the truth revealed or the criticism made is such
as to deprive the court or judge of public confidence…”.
13. The legal position with regard to truth as a defence in
contempt proceedings is now statutorily settled by Section 13 of the 1971
Act (as substituted by Act 6 of 2006). The Statement of Objects and
4
5
Ambard v. Attorney-General for Trinidad and Tobago; [(1936) AC 322].
Nationwide News Pty. Ltd. v. Wills; [(1992) 177 CLR 1].
8
Page 8
Reasons for the amendment of Section 13 by Act 6 of 2006 read as
follows:
“The existing provisions of the Contempt of Courts Act, 1971
have been interpreted in various judicial decisions to the
effect that truth cannot be pleaded as a defence to a charge
of contempt of court.
2. The National Commission to Review the Working of the
Constitution (NCRWC) has also in its report, inter alia,
recommended that in matters of contempt, it shall be open to
the Court to permit a defence of justification by truth.
3. The Government has been advised that the amendments
to the Contempt of Courts Act, 1971 to provide for the above
provision would introduce fairness in procedure and meet
the requirements of Article 21 of the Constitution.
4. Section 13 of the Contempt of Courts Act, 1971 provides
certain circumstances under which contempt is not
punishable. It is, therefore, proposed to substitute the said
section, by an amendment.
5. The Contempt of Courts (Amendment) Bill, 2003 was
introduced in the Lok Sabha on the 8th May, 2003 and the
same was referred to the Department-related Parliamentary
Standing Committee on Home Affairs for examination. The
Hon’ble Committee considered the said Bill in its meeting
held on the 2nd September, 2003. However, with the
dissolution of the 13th Lok Sabha, the Contempt of Courts
(Amendment) Bill, 2003 lapsed. It is proposed to re-introduce
the said Bill with modifications of a drafting nature.”
14. Clause 13(b), now expressly provides that truth can be valid
defence in contempt proceedings. Section 13, which has two clauses (a)
and (b), now reads as follows:
“13. Contempts not punishable in certain casesNotwithstanding
anything contained in any law for the time
being in force,—
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(a) no court shall impose a sentence under this Act for a
contempt of court unless it is satisfied that the contempt is of
such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice;
(b) the court may permit, in any proceeding for contempt of
court, justification by truth as a valid defence if it is satisfied
that it is in public interest and the request for invoking the
said defence is bona fide.”
15. The Court may now permit truth as a defence if two things are
satisfied, viz., (i) it is in public interest and (ii) the request for invoking said
defence is bona fide.
16. A two Judge Bench of this Court in R.K. Jain
6
had an occasion
to consider Section 13 of the 1971 Act, as substituted by Act 6 of 2006. In
para 39 (page 311 of the report), the Court said:
6
“……..The substituted Section 13 represents an important
legislative recognition of one of the fundamentals of our
value system i.e. truth. The amended section enables the
court to permit justification by truth as a valid defence in any
contempt proceeding if it is satisfied that such defence is in
public interest and the request for invoking the defence is
bona fide. In our view, if a speech or article, editorial, etc.
contains something which appears to be contemptuous and
this Court or the High Court is called upon to initiate
proceedings under the Act and Articles 129 and 215 of the
Constitution, the truth should ordinarily be allowed as a
defence unless the Court finds that it is only a camouflage to
escape the consequences of deliberate or malicious attempt
to scandalise the court or is an interference with the
administration of justice. Since, the petitioner has not even
suggested that what has been mentioned in the editorial is
incorrect or that the respondent has presented a distorted
version of the facts, there is no warrant for discarding the
respondent’s assertion that whatever he has written is based
Indirect Tax practitioners’ Association v. R.K. Jain; [(2010) 8 SCC 281]
10
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on true facts and the sole object of writing the editorial was
to enable the authorities concerned to take
corrective/remedial measures.”
Thus, the two Judge Bench has held that the amended section enables the
Court to permit justification by truth as a valid defence in any contempt
proceedings if it is satisfied that such defence is in public interest and the
request for invoking the defence is bona fide. We approve the view of the
two Judge Bench in R.K. Jain
6
. Nothing further needs to be considered
with regard to second question since the amendment in contempt law has
effectively rendered this question redundant.
17. It is now appropriate to consider the first question as to
whether a sitting Supreme Court Judge who is appointed as a
Commissioner by the Central Government under the 1952 Act carries with
him all the powers and jurisdiction of the Supreme Court. In order to
answer this question, it is appropriate to refer to relevant provisions of the
two Acts, namely, the 1971 Act and the 1952 Act. 1971 Act has been
enacted by the Parliament to define and limit the powers of certain courts
in punishing contempts of courts and to regulate their procedure in relation
thereto. Section 2(a) defines “contempt of court” to mean ‘civil contempt’ or
‘criminal contempt’. Civil contempt is defined in Section 2(b) while Section
2(c) defines criminal contempt. Omitting the definition of civil contempt, we
11
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may reproduce the definition of criminal contempt in the 1971 Act, which
reads:
“2(c) “criminal contempt” means the publication (whether by
words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of
any other act whatsoever which -
(i) scandalises or tends to scandalise, or lowers or tends to
lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other
manner;”
18. The three expressions, “court” in clause (i), “judicial
proceeding” in clause (ii) and “administration of justice” in clause (iii) of
Section 2(c) are really important, to answer the first question. Sections 12
and 15 of 1971 Act are the other two sections which have some bearing.
Section 12 prescribes punishment for contempt of court. Section 15 deals
with cognizance of criminal contempt by the Supreme Court or the High
Court on its own motion or on a motion made by the Advocate General or
any other person with the consent in writing of the Advocate General. The
expression “Advocate General” in clauses (a) and (b) of Section 15(1) in
relation to the Supreme Court means Attorney General or the Solicitor
General.
19. 1952 Act provides for appointment of Commissions of Inquiry
and for vesting such Commissions with certain powers. Section 2(a)(i)
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defines “appropriate Government” which means the Central Government,
in relation to a Commission appointed by it to make an inquiry into any
matter relatable to any of the entries enumerated in List I or List II or List III
in the Seventh Schedule to the Constitution and the State Government, in
relation to a Commission appointed by it to make an inquiry into any matter
relatable to any of the entries enumerated in List II or List III in the
Seventh Schedule to the Constitution. In relation to the State of Jammu
and Kashmir, there is a different provision. Sections 4 and 5 deal with the
powers and additional powers of Commission. Under Section 4, the
Commission has powers of a civil court while trying a suit under the Code
of Civil Procedure, 1908, in respect of the matters, namely, (a)
summoning and enforcing the attendance of any person from any part of
India and examining him on oath; (b) requiring the discovery and
production of any document; (c) receiving evidence on affidavits; (d)
requisitioning any public record or copy thereof from any court or office; (e)
issuing commissions for the examination of witnesses or documents etc.
Under Section 5(4), the Commission is deemed to be a civil court and
when any offence as is described in Section 175, Section 178, Section
179, Section 180 or Section 228 of the Indian Penal Code is committed in
the presence of the Commission, the Commission may, after recording the
facts constituting the offence and the statement of the accused as provided
for in the Code of Criminal Procedure, forward the case to a magistrate
13
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having jurisdiction to try the same. Under Section 5(5), any proceeding
before the Commission is deemed to be a judicial proceeding within the
meaning of Sections 193 and 228 of the Indian Penal Code.
20. Section 5A empowers the Commission to utilize the services
of certain officers and investigation agencies for conducting investigation
pertaining to inquiry. Section 10 makes provision for every member of the
Commission and every officer appointed or authorized by the Commission
in exercise of functions under the Act is deemed to be a public servant
within the meaning of Section 21 of the IPC.
21. Section 10A provides for penalty for acts calculated to bring
the Commission or any member thereof into disrepute. The provision
clothes the High Court with power to take cognizance of an offence stated
in sub-Section (1) upon a complaint in writing made by a member of
Commission or an officer of the Commission authorized by it in this behalf.
Under sub-Section (5), the High Court taking cognizance of an offence
under sub-Section (1) is mandated to try the case in accordance with the
procedure for the trial of warrant cases instituted otherwise than on a
police report before a court of a Magistrate. Section 10A reads as under:
“10A. Penalty for acts calculated to bring the Commission or
any member thereof into disrepute. (1) If any person, by
words either spoken or intended to be read, makes or
publishes any statement or does any other act, which is
calculated to bring the Commission or any member thereof
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into disrepute, he shall be punishable with simple
imprisonment for a term which may extend to six months, or
with fine, or with both.
(2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, (2 of 1974) when an offence
under sub-section (1) is alleged to have been committed, the
High Court may take cognizance of such offence, without the
case being committed to it, upon a complaint in writing,
made by a member of a Commission or an officer of the
Commission authorised by it in this behalf.
(3) Every complaint referred to in sub-section (2) shall set
forth the facts which constitute the offence alleged, the
nature of such offence and such other particulars as are
reasonably sufficient to give notice to the accused of the
offence alleged to have been committed by him.
(4) No High Court shall take cognizance of an offence under
sub-section (1) unless the complaint is made within six
months from the date on which the offence is alleged to have
been committed.
(5) A High Court taking cognizance of an offence under subsection
(1) shall try the case in accordance with the
procedure for the trial of warrant cases instituted otherwise
than on a police report before a court of a Magistrate:
Provided that the personal attendance of a member of a
Commission as a complainant or otherwise is not required in
such trial.
(6) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, (2 of 1974) an appeal shall lie as
a matter of right from any Judgment of the High Court to the
Supreme Court, both on facts and on law.
(7) Every appeal to the Supreme Court under sub-section
(6) shall be preferred within a period of thirty days from the
date of judgment appealed from:
Provided that, the Supreme Court may entertain an appeal
after the expiry of the said period of thirty days if it is
satisfied that the appellant had sufficient cause for not
preferring the appeal within the period of thirty days.”
15
Page 15
22. As is seen from above, the Commission has the powers of
civil court for the limited purpose as set out in that Section. It is also
treated as a civil court for the purposes of Section 5(4). The proceedings
before the Commission are deemed to be judicial proceedings within the
meaning of Sections 193 and 228 of the Indian Penal Code. But the real
issues are: whether the above provisions particularly and the 1952 Act
generally would bring the Commission comprising of a sitting Supreme
Court Judge within the meaning of “Court” under Section 2(c)(i)? Whether
the proceedings before the Commission are judicial proceedings for the
purposes of Section 2(c) (ii)? Whether the functioning of such Commission
is part of the administration of justice within the meaning of Section 2(c)
(iii)?
23. We do not have any doubt that functions of the Commission
appointed under the 1952 Act are not like a body discharging judicial
functions or judicial power. The Commission appointed under the 1952
Act in our view is not a Court and making the inquiry or determination of
facts by the Commission is not of judicial character.
24. Sections 19 and 20 of the Indian Penal Code define the words
“Court” and the “Court of Justice” as under:
“19. The word “Judge” denotes not only every person who is
officially designated as a Judge, but also every person, —
who is empowered by law to give, in any legal proceeding,
civil or criminal, a definitive judgment, or a judgment which, if
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not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be
definitive, or
who is one of a body of persons, which body of persons is
empowered by law to give such a judgment.
20. The words “Court of Justice” denote a Judge who is
empowered by law to act judicially alone, or a body of
Judges which is empowered by law to act judicially as a
body, when such Judge or body of Judges is acting
judicially.”
25. Though the 1971 Act does not define the term ‘Court’ but in
our opinion, the ‘Court’ under that Act means the authority which has the
legal power to give a judgment which, if confirmed by some other authority,
would be definitive. The Court is an institution which has power to regulate
legal rights by the delivery of definitive judgments, and to enforce its orders
by legal sanctions and if its procedure is judicial in character in such
matters as the taking of evidence and the administration of oath, then it is
a court. The Commission constituted under the 1952 Act does not meet
these pre-eminent tests of a Court.
26. According to Stephen (Stephen’s Commentaries on the Laws
of England, 6
th
Edn., page 383) in every Court, there must be at least three
constituent parts – the ‘actor’, ‘reus’ and ‘judex’: the ‘actor’, who complains
of an injury done; the ‘reus’ or defendant, who is called upon to make
satisfaction; and the ‘judex’ or judicial power, which is to examine the truth
of the fact and to determine the law arising upon the fact and if any injury
17
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appears to have been done, to ascertain, and by its officers to apply, the
remedy.
27. In Bharat Bank Ltd.
7
, the Constitution Bench was seized with
the question whether Industrial Tribunal is a court within the meaning of
Article 136 of the Constitution of India. Mehr Chand Mahajan, J. (as he
then was) referred to the statement of Griffith, C.J. in Huddart Parker &
Co.
8
and observed, “if a body which has power to give a binding and
authoritative decision is able to take action so as to enforce that decision,
then, but only then, according to the definition quoted, all the attributes of
judicial power are plainly present.” Mukherjea, J. on consideration of Shell
Co.
9
, Huddart Parker & Co.
8
and Rola Co.
10
stated, “the other fundamental
test which distinguishes a judicial from a quasi-judicial or administrative
body is that the former decides controversies according to law, while the
latter is not bound strictly to follow the law for its decision. The
investigation of facts on evidence adduced by the parties may be a
common feature in both judicial and quasi-judicial tribunals, but the
difference between the two lies in the fact that in a judicial proceeding the
Judge has got to apply to the facts found, the law of the land which is fixed
7
8
9
Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi; [AIR 1950 SC 188]
Huddart Parker & Co. Pty. Ltd. v. Moorehead [8 CLR 330]
Shell Co. of Australia, Ltd. v. Federal Commissioner of Taxation [(1931) AC 275]
10
Rola Co.(Australia) Pty. Limited v. Commonwealth [69 CLR 185]
18
Page 18
and uniform. The quasi-judicial tribunal, on the other hand, gives its
decision on the differences between the parties not in accordance with
fixed rules of law but on principles of administrative policy or convenience
or what appears to be just and proper in the circumstances of a particular
case. In other words, the process employed by an Administrative Tribunal
in coming to its decision is not what is known as “judicial process”.
28. In Brajnandan Sinha
11
, a three Judge Bench of this Court had
an occasion to consider the question whether the Commissioner appointed
under Public Servants (Inquiries) Act, 1850 (Act 37 of 1850) is a Court. In
that case, Coke on Littleton and Stroud was referred that says that “Court”
is the place where justice is judicially administered. The Court also
considered Section 3 of the Indian Evidence Act and Sections 19 and 20 of
the Indian Penal Code and then observed, “the pronouncement of a
definitive judgment is thus considered the essential sine qua non of a
Court and unless and until a binding and authoritative judgment is
pronounced by a person or body of persons, it cannot be predicated that
he or they constitute a Court.” Bharat Bank Ltd.
also decisions of this Court in Maqbool Hussain
Venkataraman
11
12
13
13
7
was also referred and so
and it was noted that in S.A. Venkataraman
Brajnandan Sinha v. Jyoti Narain; [(1955) 2 SCR 955]
Maqbool Hussain v. State of Bombay; [AIR 1953 SC 325]
S.A. Venkataraman v. Union of India [AIR 1954 SC 375]
12
and S.A.
13
following
19
Page 19
Maqbool Hussain
12
, the Constitution Bench laid down that both finality and
authoritativeness were the essential tests of a judicial pronouncement.
The Court said that in order to constitute a Court in the strict sense of the
term, an essential condition is that the Court should have, apart from
having some of the trappings of a judicial tribunal, power to give a decision
or a definitive judgment which has finality and authoritativeness which are
the essential tests of a judicial pronouncement. With reference to the
provisions of Public Servants (Inquiries) Act vis-à-vis Contempt of Courts
Act, 1952, the three Judge Bench held that the Commissioner appointed
under Public Servants (Inquiries) Act is not a Court within the meaning of
Contempt of Courts Act, 1952.
29. We are in full agreement with the legal position exposited in
Brajnandan Sinha
11
and approve the same.
30. The judgment of the full Bench of Madras High Court In Re :
Mr. Hayles, Editor of “The Mail” and Anr.
14
deserves consideration now.
That was a case where a sitting Judge of the Madras High Court was
appointed as a member of the Industrial Tribunal under Section 7 of the
Industrial Disputes Act. The alleged contempt with which the contemnors
were charged with contempt were both in relation to the proceedings for
the Industrial Tribunal, though the Industrial Tribunal was presided over by
the sitting Judge of the Madras High Court. The disputes between workers
14
In Re : Mr. Hayles, Editor of “The Mail” and Anr.; [AIR 1955 Madras 1]
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and managements of Amalgamations Limited which owned the newspaper
“The Mail” fell for adjudication before the Industrial Tribunal. The contempt
notice was issued by the Tribunal to the counsel for the Editor Govind
Swaminathan and the Editor Hayles to show cause as to why action for
contempt may not be initiated for criticism of the Tribunal. The respondent
challenged the show cause notice on the ground that the Tribunal, though
headed by a sitting Judge, did not have power to punish for contempt.
While dealing with the above challenge, the full Bench of the Madras High
Court held that a Judge of the High Court when appointed as sole member
of the Industrial Tribunal, did not have the powers of a Judge of that High
Court to punish persons for contempt of the Tribunal even under Article
215 of the Constitution of India.
31. The Division Bench of the Madras High Court in P.
Rajangam
15
had an occasion to consider the question whether a writ of
certiorari could be issued to quash the inquiry made by the Magistrate
under Section 176 of the Code of Criminal Procedure read with Police
Standing Order issued by the Government of Madras. While dealing with
this question, the principal aspect that was under consideration before the
Division Bench of the Madras High Court with regard to the nature of such
inquiry was whether it was judicial or quasi judicial or non judicial. The
Division Bench referred to the decision of this Court in Brajnandan Sinha
15
P. Rajangam, Sub-Inspector of Police and Ors. v. State of Madras and ors. [AIR 1959 Madras 294]
21
11
Page 21
and ultimately held that the object of such inquiry was nothing more than to
furnish materials on which action could be taken or not and the report by
itself would purely be recommendatory and not one effective proprio
vigore.
32. In Shri Ram Krishna Dalmia
16
, this Court held that the inquiry
by the Commission under the 1952 Act was neither a judicial nor a quasi
judicial proceeding attracting the issue of appropriate writs under Article
226 of the Constitution of India.
33. The two Judge Bench of this Court in Dr. Baliram Waman
Hiray
17
was concerned with a question whether a Commission of Inquiry
constituted under Section 3 of the 1952 Act is a Court for the purposes of
Section 195 (1)(b) of the Code of Criminal Procedure, 1973. The Court
observed:
16
17
“A Commission of Inquiry is not a court properly so called. A
Commission is obviously appointed by the appropriate
government ‘for the information of its mind’ in order for it to
decide as to the course of action to be followed. It is
therefore a fact-finding body and is not required to adjudicate
upon the rights of the parties and has no adjudicatory
functions. The government is not bound to accept its
recommendations or act upon its findings. The mere fact that
the procedure adopted by it is of a legal character and it has
the power to administer an oath will not impart to it the status
of a court.”
The Court further observed:
Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar and ors; [1959 SCR 279]
Dr. Baliram Waman Hiray v. Justice B. Lentin and ors; [(1988) 4 SCC 419]
22
Page 22
“The least that is required of a court is the capacity to deliver
a ‘definitive judgment’, and merely because the procedure
adopted by it is of a legal character and it has power to
administer an oath will not impart to it the status of a court.
That being so, it must be held that a Commission of Inquiry
appointed by the appropriate government under Section 3(1)
of the Commissions of Inquiry Act is not a court for the
purposes of Section 195 of the Code.”
33.1. The Court agreed with the following observations of the
Nagpur High Court in M.V.Rajwade
18
18
:
“The Commission in question was obviously appointed by
the State Government “for the information of its own mind”,
in order that it should not act, in exercise of its executive
power, “otherwise than in accordance with the dictates of
justice and equity” in ordering a departmental enquiry
against its officers. It was, therefore, a fact-finding body
meant only to instruct the mind of the government without
producing any document of a judicial nature. The two cases
are parallel, and the decision must be as in ‘In re Maharaja
Madhava Singh (D)’ [LR (1905) 31 IA 239] that the
Commission was not a court.
The term “court” has not been defined in the Contempt of
Courts Act, 1952. Its definition in the Indian Evidence Act,
1872, is not exhaustive and is intended only for purposes of
the Act. The Contempt of Courts Act, 1952 however, does
contemplate a “court of Justice” which as defined in Section
20, Penal Code, 1860 denotes “a Judge who is empowered
by law to act judicially”. The word “Judge” is defined in
Section 19 as denoting every person—
‘Who is empowered by law to give, in any legal proceeding,
civil or criminal, a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be
definitive....’
The minimum test of a “court of justice”, in the above
definition, is, therefore, the legal power to give a judgment
which, if confirmed by some other authority, would be
definitive. Such is the case with the Commission appointed
M.V.Rajwade, I.A.S., Dist. Magistrate v. Dr. S.M. Hassan and ors.; [AIR 1954 Nagpur 71]
23
Page 23
under the Public Servants (Inquiries) Act, 1850, whose
recommendations constitute a definitive judgment when
confirmed by the government. This, however, is not the case
with a Commission appointed under the Commissions of
Inquiry Act, 1952, whose findings are not contemplated by
law as liable at any stage to confirmation by any authority so
as to assume the character of a final decision.”
34. We agree with the view in Dr. Baliram Waman Hiray
approve the decision of the Nagpur High Court in M.V.Rajwade
also in agreement with the submission of Shri Mohan Parasaran, learned
Solicitor General that a Commission appointed under the 1952 Act is in the
nature of a statutory Commission and merely because a Commission of
Inquiry is headed by a sitting Judge of the Supreme Court, it does not
become an extended arm of this Court. The Commission constituted
under the 1952 Act is a fact finding body to enable the appropriate
Government to decide as to the course of action to be followed. Such
Commission is not required to adjudicate upon the rights of the parties and
has no adjudicatory functions. The Government is not bound to accept its
recommendations or act upon its findings. The mere fact that the
procedure adopted by the Commission is of a legal character and it has
the power to administer oath will not clothe it with the status of Court. That
being so, in our view, the Commission appointed under the 1952 Act is not
a Court for the purposes of Contempt of Courts Act even though it is
headed by a sitting Supreme Court Judge. Moreover, Section 10A of the
1952 Act leaves no matter of doubt that the High Court has been conferred
18
17
and
. We are
24
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with the power to take cognizance of the complaint in respect of the acts
calculated to bring the Commission or any member thereof into disrepute.
Section 10A provides the power of constructive contempt to the
Commission by making a reference to the High Court with a right of appeal
to this Court. Our answer to the first question is, therefore, in the negative.
35. In view of the above reasons, the contempt petitions are
dismissed and the contempt notices are discharged.
….………..……………………CJI.
(R.M. Lodha)
…….………..……………………J.
(Anil R. Dave)
…….………..……………………J.
(Sudhansu Jyoti Mukhopadhaya)
…….………..……………………J.
(Dipak Misra)
NEW DELHI; …….………..……………………J.
JULY 23, 2014. (Shiva Kirti Singh)
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