DR. SUBRAMANIAN SWAMYversusARUN SHOURIE

                    [2014] 13 S.C.R. 581


                DR. SUBRAMANIAN SWAMY
                               V.

                       ARUN SHOURIE
          (Contempt Petition (Crl.) No. 11 of 1990)                  B
                        JULY 23, 2014
            [R.. M. LODHA, CJI, ANIL R. DAVE,
 SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA
         AND SHIVA KIRTI SINGH, JJ.]                                 C
     Contempt of Court Act, 1971:

       ss. 1OA and 15 r/w. Art. 129 of Constitution of India -
Contempt proceedings - Maintainability of- For the act of
criticizing the report of a Commission constituted under             o
Commission of Inquiry Act, 1952 headed by the sitting Judge
of Supreme Court - Held: A Commission appointed under
1952 Act is in the nature of statutory Commission - It is in
fact a fact-finding body- It is not required to adjudicate upon
the rights of the parties and has no adjudicatory functions - E
Its findings have no binding effect - Therefore, such
Commission is not a Court for the purpose of 1971 Act -
Merely because such Commission is headed by a Sitting
Judge of Supreme Court, it does not become an extended
arm of Supreme Court- The present contempt proceedings · F
could not have been initiated- s. 1OA provides for the power
of constructive contempt to the Commission by making a
reference to the High Court- Contempt proceeding initiated
suo motu and u/s. 15 dismissed - Constitution of India, 1950
-Art. 129.                                                      G

     s. 13 (as substituted by Act 6 of 2006) - Truth as a
defence in contempt proceedings - Held: Courts should
permit truth as a defence, if it is satisfied that it is in public
                                                                     H
                              581
582         SUPREME COURT REPORTS                   [2014] 13 S.C.R.

A     interest and the request for invoking said defence is bona
      fide.

            Words and Phrases - 'Court' - Meaning of, in the
      context of Contempt of Courts Act, 1971 - In every Court
8     there must be at least three constituent parts-the 'actor', 'reus'
      and 'judex' i.e. complainant, defendant and judicial power-
      A Commission constituted under Commissions of Inquiry Act
      does not meet the pre-eminent tests of a Court. ·

C         The respondent had published an editorial,
      whereby he had criticized the report given by Justice
      Kuldip Singh (a sitting Judge of Supreme Court) as a
      Chairman of the Commission of Inquiry constituted
      under the Commission of Inquiry Act, 1952.
D           In view of the editorial, this Court initiated suo motu
      contempt petition ulArt.129 of the Constitution. Appellant
      also filed contempt petition u/s. 15 of Contempt of Courts
      Act, 1971, against the respondent.
E       The Chief Justice of India obtained opinion of the
  Attorney General, who opined that the editorial had prima
  facie overstepped the limits of permissible criticism; and
  that the law of contempt, as was existing in the country,
  did not provide for truth as defence and hence notice
F could be issued calling for explanation.

        Both the contempt matters were referred to the
  Constitution Bench to decide the two principal questions
  viz. (i) Whether truth can be pleaded as defence in
G contempt proceedings? and (ii) 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?
H
     DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                          583


     Dismissing the Contempt Petitions, the Court                 A

      HELD: 1. The legal position with regard to truth as
a defence in contempt proceedings is statutorily settled
by Section 13 of the Contempt of Court Act, 1971 (as
substituted by Act 6 of 2006). Clause 13(b), expressly            B
provides that truth can be valid defence in contempt
proceedings. The Court may 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.
[Paras 13 to 15][594-B; 595-B; F]                                 c
     Indirect Tax practitioners' Association v. R.K. Jain
     (2010) 8 sec 281 - relied on.

     Ambard v. Attorney-General for Trinidad and
     Tobago (1936) AC 322; Nationwide News Pty. Ltd.              D
     v. Wills (1992) 177 CLR 1 - referred to.
     2.1. Functions of the Commission appointed under
the Commission of Inquiry Act, 1952 are not like a body
discharging judicial functions 'or judicial power. The E
Commission appointed under the. 1952 Act is not a Court
and making the inquiry or determination of facts by the
Commission is not of judicial character. [Para 23]

     2.2. Though the Contempt of Courts Act does not F
define the term 'Court' but 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 G
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
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584      SUPREME COURT REPORTS                [2014] 13 S.C.R.


A the 1952 Act does not meet these pre-eminent tests of a
  Court. [Para 25][602-B-D]

        2.3. In every Court, there must be at least three
  constituent parts - the 'actor', 'reus' and 'judex': the
8 '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 appears to have been done, to ascertain,
c and by its officers to apply, the remedy. [Para 26]
  [602-E-F]
         2.4. 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
0
    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
E · 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
F Commission is of a legal character and it has the power
    to administer oath will not clothe it with the status of a
    Court. That being so, 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
G Supreme Court Judge. [Para 34][608-B-E]

        Bharat Bank Ltd., Delhi v. Employees of the Bharat
        Bank Ltd., Delhi 1950 SCR 459 AIR 1950 SC
        188 - followed.
H
  _ DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                     585


     Brajnandan Sinha v. Jyoti Narain (1955) 2 SCR          A
     955; Maqbool Hussain v. State of Bombay 1953
      SCR 730 = AIR 1953 SC 325; S.A.
     Venkataraman v. Union of India 1954
      SCR 1150 =AIR_ 1954 SC 375; Shri Ram Krishna
     Dafmia v. Shri Justice S.R. Tendolkar and Ors.         B
     1959 SCR 279; Dr. Baliram Waman Hiray v.
     Justice B. Lentin and Ors. 1988 (2) Suppl. SCR
     942 = (1988) 4 sec 419 - relied on.

     Huddart Parker & Co. Pty. Ltd. v. Moorehead 8          c
     CLR 330; Shell Co. of Australia, Ltd. v. Federal
     Commissioner of Taxation (1931) AC 275; Rola
     Co.(Australia) Pty. Limited v. Commonwealth 69 ·
     CLR 185; In Re : Mr. Hayles, Editor of "The Mail"
     andAnr. AIR 1955 Madras 1; P Rajangam, Sub-            D
     Inspector of Police and Ors. v. State of Madras
     and Ors. AIR 1959 Madras 294; M. V.Rajwade,
     l.A.S., Dist. Magistrate v. Dr. S.M. Hassan and Ors.
     AIR 1954 Nagpur 71 - referred to.
                                                            E
     2.5. Moreover, Section 10A of the 1952 Act leaves
no matter of doubt that the High Court has been
conferred 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.            F
Section 1 OA 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.
[Para 34][608-E-F]
                                                            G
                Case Law Reference:

(1936) AC 322               referred to          Para 11
(1992) 177 CLR 1            referred to          Para 11
                                                            H
586        SUPREME COURT REPORTS             [2014] 13 S.C.R.


A     (201 O) 8 sec 281        relied on           Para 16

      1950 SCR 459             followed            Para 27

      8 CLR 330                referred to         Para 27

B     (1931) AC 275            referred to         Para 27

      69CLR185                 referred to         Para 27

      (1955) 2 SCR 955         relied on           Para 28

c 1953 SCR 730                 relied on           Para 28

      1954 SCR 1150            relied on           Para 28

      AIR 1955 Madras 1        referred to         Para 30

      AIR 1959 Madras 294      referred to         Para 31
 D
      1959 SCR 279             relied on           Para 32

      1988 (2) Suppl. SCR 942 relied on            Para 33

      AIR1954 Nagpur 71        referred to         Para 33.1
 E

              CRIMINAL ORIGINAL JURISDICTION: Contempt
      Petition (Criminal) No. 11 of 1990.

 F                              WITH

           Contempt Petition (Criminal) No. 12of1990.

         Mohan Parasaran, SG., AshokH. Desai, Arvind Datar,
   Sr.Advs., Bharat Sangal, Ms. Madhavi Divan, Ms. Bina Gupta,
 G Abhay A. Jena and Harsh Desai, Advs. for the appearing
   parties.




 H
     DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                          587


     The Judgment of the Court was delivered by                   A

       R. M. LODHA, CJI. 1. 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"                      B

     The legal opinion that the former Chief Justice of India,
     Mr. Y. V. ChF1ndrachud, has given on the Kuldip Singh
     Commission's report is a stunning indictment. Succinct,
     under.stated to the point of being deferential, scrupulously C
     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 D
     witness 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 E
     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 F
     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 G
     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
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588    SUPREME COURT REPORTS                     [2014] 13 S.C.R.


A     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
B     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.
c
        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
 D     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
 E      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
 F    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
 G·   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 the time to examine such reports, to
      examine as well the conduct of the commissioners who
      perpetrate them."
 H
      DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                                   589
                 [R. M. LODHA, J.]

       2. It so happened that Justice Kuldip Singh, the then A
sitting Judge of the Supreme Court, was appointed as
Chairman, Commission of Inquiry under the Commissions of
Inquiry Act, 1952 (hereinafter referred to as '1952Act') to probe
into alleged acts of omissions and commissions by Shri
Ramakrishna Hegde, the former Chief Minister of Karnataka. B
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
Swamy1 and the other2 suo motu arise from the editorial C
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 D
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, suo motu in E
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 F
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, pnma
facie, overstepped the limits of permissible criticism and the
law of contempt, as was existing in the country, did not provide G
for truth as defence and, therefore, he opined that an
explanation was called for and a notice could be issued for
1
  [Contempt Petition (Crl.) No.11 of 1990 Dr. Subramanian Swamy v. Arun
Shourie]
2
  [Contempt Petition (Crl.) No.12of1990 In the matter of Mr. Arun Shounej   H
590        SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A 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
B 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
 c    this Court headed by the Hon'ble the Chief Justice. The
      proceec;ling of 03.09.1990 reads as under:

             "In Re : Arun Shourie and Anr.

           We have seen the editorial in the "Indian Express" of
 D         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
 E         notice returnable on 8th 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.
 F
           The contemners shall be present in the Court in person
           on 8th 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
 G
           8th October, 1990.                           ·

           Issue notice to the Attorney General of India to appear
           and assist the Court in hearing the matter.            ·

 H
      DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                                     591
                 [R. M. LODHA. J.]

      CONTEMPT PETITION NO.                   OF 1990:                        A
        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. Karnath. We will
      consider that matter separately later on.
                                                                              B
      Dr. Subramanian Swamy vs. Mr. Arun Shourie:
        Issue notice returnable on 81h October, 1990 stating
      therein why contempt proceedings should not be
      initiated."
                                                                              c
       6. RespondentArun 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           D
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 of the counter affidavit. The Court, however, on
04.03.1991 rejected his prayer and observed that the                          E
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.                                                 F
      7. The matters remained dormant for many years. On
25.08.19983 , a three Judge Bench directed that these matters
be placed before a Constitution Bench.
3
   These contempt matters relate to comments made by the alleged              G
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 0.0.
Thakur, the learned senior counsel appearing for the alleged contemnor
that the petition is not maintainable since consent of the Attorney General   H
592          SUPREME COURT REPORTS                          [2014) 13 S.C.R.


A          8. This is how these matters have come up for
      consideration before the Constitution Bench. We have heard
      Mr. Mohan Parasaran, learned Solicitor General and Mr. Ashok
      H. Desai, learned senior counsel for the respondent.

B           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
c     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.
D     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
 E    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
 F    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 contemn ors have urged that truth can
 G    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
 H    Constitution Bench.
        DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                                 593
                   [R. M. LODHA, J.]

     10. The two principal questions that arise for                         A
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              B
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
                                                                            c
proceedings?

        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               D
Privy Council in Ambarc/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           E
         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            F
         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            G
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
4
    Am bard v. Attorney-General for Trinidad and Tobago; [(1936) AC 322].
5
    Nationwide News Pty. Ltd. v. Wills; [(1992) 177 CLR 1].                 H
594         SUPREME COURT REPORTS                  (2014) 13 S.C.R.


A     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
B     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 Reasons for the amendment of
      Section 13 by Act 6 of 2006 read as follows:

           "The existing provisions of the Contempt of Courts Act,
c          1971 have been inte,rpreted 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
D          the Constitution (NCRWC) has also in its report, inter
           a/ia, recommended that in matters of contempt, it shall
           be open to the Court to permit a defence of justification
           by truth.

 E         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.
 F
           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.
 G         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
 H
        DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                                    595
                   [R. M. LODHA, J.]

        said Bill in its meeting held on the 2nd September, 2003. A
        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."
                                                                               B
     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 cases-
        Notwithstanding anything contained in any law forthe time C
        being in force,-
        (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 D
        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 E
        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.
                                                                               F
      16. A two ~udge Bench ofthis Court in R.K. Jain had an      6

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:
                                                                               G
         " ........ The substituted Section 13 represents an
         important legislative recognition of one of the
         fundamentals of our value system i.e. truth. The amended
6
    Indirect Tax practitioners' Association v. R.K. Jain; [(2010) 8 SCC 281]   H
596         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A          section enables the court to permit justification by truth
           as a valid defence in any contempt proceE?ding 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
B          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
c          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
D
           a distorted version of the facts, there is no warrant for
           discarding the respondent's assertion that whatever he
           has written is based on true facts and the sole object of
           writing the editorial was to enable the authorities
           concerned to take corrective/remedial measures."
 E
         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
 F 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
 G 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
 H
     DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                               597
                [R. M. LODHA, J.]

Supreme Court. In order to answer this question, it is                 A
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              B
"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 may reproduce the definition of criminal
contempt in the 1971 Act, which reads:                                 C

     "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 -                               D

     (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                        E

      (iii) interferes or tends to interfere with, or obstructs or
      tends to obstruct, the administration of justice in any other
      manner;"
                                                                       F
       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            G
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
                                                                       H
598        SUPREME COURT REPORTS                 [2014] 13 S.C.R.



A     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.

B         19. 1952 Act provides for appointment of Commissions
  of Inquiry and for vesting such Commissions with certain
  powers. Section 2(a)(i) defines "appropriate Government"
  which means the Central Government, in relation to a
  Commission appointed by it to make an inquiry into any matter
c relatable to any of the entries enumerated in List I or List II or
  List Ill 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 Ill in the Seventh Schedule to the
D 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
E 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
F 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
G
  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
H magistrate having jurisdiction to try the same. Under Section
     DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                       599
                [R. M. LODHA, J.]

5(5), any proceeding before the Commission is deemed to A
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     8
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.            c
       21. Section 1OA 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
                                                                 0
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 E
instituted otherwise than on a police report before a court of a
Magistrate. Section 1OA reads as under:
     "1 OA. Penalty for acts calculated to bring the Commission
     or any member thereof into disrepute. (1) If any person, F
     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 into disrepute, he shall be punishable with simple
     imprisonment for a term which may extend to six months, G
     or with fine, or with both.
     (2) Notwithstanding anything contained in the Code of
     Criminal Procedure, 1973, (2of1974) when an offence
     under sub-section (1) is alleged to have been committed,
     the High Court may take cognizance of such offence, H
600   SUPREME COURT REPORTS                    [2014] 13 S.C.R.


A     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
 B    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
 c    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
 D    sub-section (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:

 E     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
 F
      Criminal Procedure, 1973, (2of1974) 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-
 G    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
 H    it is satisfied that the appellant had sufficient cause for
     DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                        601
                [R. M. LODHA, J.]

     not preferring the appeal within the period of thirty days." A

       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 B
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" c
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)?                                               D
     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 E
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:
                                                                 F
      "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 not appealed against, would be G
     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.                H
602         SUPREME COURT REPORTS                       [2014] 13 S.C.R.


A          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."
B
         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
c 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
D 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, 61h Edn., page 383) in every Court, there
   must be at least three constituent parts- the 'actor', 'reus' and
 E '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 appears to have been done, to ascertain, and by its
 F 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.
 G 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
      7
        Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi;
        [AIR 1950 SC 188]
 H    8
        Huddart Parker & Co. Pty. Ltd. v. Moorehead [8 CLR 330]
      DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                               603
                 [R. M. LODHA, J.]

authoritative decision is able to take action so as to enforce          A
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        B
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      C
fact that in a judicial proceeding the Judge has got to apply to
the facts found, the law of the land which is fixed and uniform.
The quasi-judicial tribunal, on the other hand, gives its decision
on the differences between the parties not in accordance with
                                                                        0
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".
                                                                        E
       28. In Brajnandan Sinha 11 , a three Judge Bench of this
Court had an occasion to consider the ·question whether the
Commissioner appointed under Publ.ic 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 F
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 G
essential sine qua non of a Court and unless and until a binding
and authoritative judgment is pronounced by a person or body
9  Shell Co. of Australia, Ltd. v. Federal Commissioner of Taxation
   [(1931) AC 275]
10
   Rola Co.(Australia) Pty. Limited v. Commonwealth [69 CLR 185]
11
   Brajnandan Sinha v. Jyoti Narain: [(1955) 2 SCR 955]                 H
604         SUPREME COURT REPORTS                       [2014] 13 S.C.R.


A of persons, it cannot be predicated that he or they constitute a
  Court." Bharat Bank Ltd. 7 was also referred and so also
  decisions of this Court in Maqbool Hussain 12 and S.A.
  Venkataraman 13 and it was noted that in S.A. Venkataraman 13
  following Maqbool Hussain 12 , the Constitution Bench laid down
B 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
C 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 (lnquiries)Act
   vis-a-vis Contempt of Courts Act, 1952, the three Judge Bench
   held that the Commissioner appointed under Public Servants
D (lnquiries)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.
 E
         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
 F 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.
 G The disputes between workers and managements of
   Amalgamations Limited which owned the newspaper "The
   Mail" fell for adjudication before the Industrial Tribunal. The
      12 Maqbool Hussain v. State of Bombay; [AIR 1953 SC 325]

      13 S.A. Venkataraman v. Union of India [AIR 1954 SC 375]

 H    14 In Re: Mr. Hayles, Editor of "The Mail" and Anr.; [AIR 1955 Madras 1]
     DR SUBRAMANIAN SWAMYv.ARUN SHOURIE                                605
               [R. M. LODHA, J.]

contempt notice was issued by the Tribunal to the counsel for A
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. B
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 C
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 D ,
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 fyladras High Court with regard to the E
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 11 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 F
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 G
a judicial nor a quasi judicial proceeding attracting the issue
of appropriate writs under Article 226 of the Constitution of.
India.
15
    P. Rajangam, Sub-Inspector of Police and Ors. v. State of Madras
   and ors. [AIR 1959 Madras 294]
16
    Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar and ors;     H
   [1959 SCR 279]
     606         SUPREME COURT REPORTS                         [2014] 13 S.C.R.


     A           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:
     B
                 "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
     c           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
      D          character and it has the power to administer an oath will
                 not impart to it the status of a court."
                 The Court further observed:
                 "The least that is required of a court is the capacity to
      E          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
      F          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 :
      G
                 "The Commission in question was obviously appointed
                 by the State Government "for the information of its own
           17 Dr. Baliram Warn an Hiray v. Justice B. Lentin and ors;

             [(1988) 4   sec 419]
           18 M.V.Rajwade, l.A.S., Dist. Magistrate v. Dr. S.M. Hassan and ors.;
      H     [AIR 1954 Nagpur71]
.DR. SUBRAMANIAN SWAMYv.ARUN SHOURIE                          607
            [R. M. LODHA, J.]

mind", in order that it should not act, in exercise of its A
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 B
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 C
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 D
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    E
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 F
which, if confirmed by some other authority, would be
definitive. Such is the case with the Commission
appointed under the Public Servants (Inquiries) Act,
1850, whose recommendations constitute a definitive G
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 H
the character of a final decision."
608         SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A            34. We agree with the view in Dr. Baliram Waman
            17
      Hiray and approve the decision of the Nagpur High Court in
      M. V.Rajwade 18 • We are also in agreement with the
      submission of Shri Mohan Parasaran, learned Solicitor General
      that ~ Commission appointed under the 1952 Act is in the
B     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
C     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 adjudicat9ryfunctions. The Government
      is not bound to accept its recommendations or act upon its
      findings. The mere fact that the procedure adopted by the
 0
      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
 E    Act even though it is headed by a sitting Supreme Court Judge.
       Moreover, Section 1OA of the 1952 Act leaves no matter of
       doubt that the High Court has been conferred with the power
      to take cognizance of the complaint in respect of the acts
       calculated to bring the Commission or any member thereof
 F     into disrepute. Section 1OA 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
 G are dismissed and the contempt notices are discharged.


      Kalpana K. Tripathy                    Contempt Petitions dismissed.

 H