Supreme Court of India
RE : VIJAY KURLE & ORS.versusRE:
- Citation
- 2020 INSC 373
- Decided
- 27 April 2020
- Disposal
- Directions issued
- Bench
- DEEPAK GUPTA
Holding
The Supreme Court possesses inherent constitutional power under Article 129 (and Article 142 subject to law) to punish contempt suo motu, and the notice was valid; consequently, Vijay Kurle, Rashid Khan Pathan and Nilesh Ojha are guilty of contempt.
Summary
The Supreme Court entertained a suo motu contempt petition filed against Vijay Kurle, Rashid Khan Pathan and Nilesh Ojha for circulating letters containing scandalous and scurrilous allegations against two Supreme Court judges. The Court examined whether it could initiate contempt proceedings without the consent of the Attorney‑General or Solicitor‑General, and held that its inherent constitutional power under Article 129 (and Article 142 subject to law) allows suo motu action and that Section 15 of the Contempt of Courts Act merely prescribes procedure, not the source of power. It further ruled that the notice issued under the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 was valid despite not complying with every requirement of the Act. The bench rejected claims that it acted as judge in its own cause, that the source of information had to be disclosed, and that the alleged contemnors could rely on a truth defence or free‑speech rights to level such attacks. Consequently, all three alleged contemnors were found guilty of contempt and the matter was listed for sentencing.
Issues considered
- The Supreme Court's power to initiate contempt suo motu without Attorney‑General consent under Articles 129 and 142
- Whether the notice issued complied with the Contempt of Courts Act, 1971 and the Supreme Court's own Rules
- Whether the bench acted as judge in its own cause by issuing notice before the matter was listed
- Whether the source of information for the contempt proceedings must be disclosed
- Whether the letters constitute contempt despite claims of fair criticism and truth defence
- Scope of freedom of speech in criticizing judicial decisions
Legislation cited
- Code of Criminal Procedure, 1973s. 340
- Contempt of Courts Act, 1971s. 10, s. 13, s. 14, s. 15, s. 17, s. 2, s. 5
- Indian Penal Code, 1860s. 218, s. 52
Subjects
contempt of courtsuo motu jurisdictionArticle 129Article 142freedom of speechjudicial criticismprocedural fairnesstruth defence
Judgment
1014 [2020]REPORTS
SUPREME COURT 7 S.C.R. 1014 [2020] 7 S.C.R.
A RE : VIJAY KURLE & ORS.
(Suo Motu Contempt Petition Criminal No. 2 of 2019)
APRIL 27, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
B
Constitution of India – Art. 129 and 142 – Contempt of Courts
Act, 1971 – s. 15 – The Rules to Regulate Proceedings for Contempt
of the Supreme Court, 1975 – Powers of the Supreme Court of India
in relation to dealing with contempt – The amicus curiae contended
that the Supreme Court being a Court of Record is not bound by the
C provisions of the Contempt of Courts Act, 1971 – Held: A bare
reading of Art.129 clearly shows that Supreme Court being a Court
of Record shall have all the powers of such a Court of Record
including the power to punish for contempt itself – This is a
Constitutional power which cannot be taken away or in any manner
D abridged by statute – Art.142 also provides that the Supreme Court
can punish any person for contempt of itself but this power is subject
to the provisions of law made by Parliament – The power under
clause (2) of Art.142 is not the primary source of power of Court of
Record which is Art.129 and there is no such restriction in Art.129
– The Supreme Court has also framed rules in this regard known as
E
the Rules to Regulate Proceedings for Contempt of the Supreme
Court, 1975 and the r.3 of the same shows the 3 ways for initiating
contempt proceedings i.e. a) suo motu; or (b) on a petition made by
Attorney-General, or Solicitor-General; or (c) on a petition made
by any person, and in the case of a criminal contempt with the
F consent in writing of the Attorney-General or the Solicitor-General
– S.15 of the Act, 1971 is not the source of power to issue notice for
contempt and it only provides the procedure in which such contempt
is to be initiated – As far as suo motu petitions are concerned, there
is no requirement for taking consent of anybody because the Court
G is exercising its inherent powers to issue notice for contempt – This
is not only clear from the provisions of the Act also clear from the
Rules laid down by the Supreme Court.
Contempt of Courts Act, 1971 – The Rules to Regulate
Proceedings for Contempt of the Supreme Court, 1975 – Two letters
H
1014
RE : VIJAY KURLE & ORS. 1015
dated 20.3.2019 and 19.3.2019 signed by alleged contemnor nos. A
1 and 2 were circulated – The tenor of the letters was highly
disrespectful, and scandalous and scurrilous allegations were
levelled against the two Judges of the Supreme Court – A Bench
issued notice to the contemnors and directed that the matter be placed
before the Chief Justice of India to constitute an appropriate bench B
to hear and decide the contempt case – The alleged contemnors
filed applications for discharge of notices issued to them – The
main ground for discharge was that the notice sent was not in
accordance with the provisions of the Contempt of Courts Act, 1971
– Held: The Supreme Court has its own Rules, i.e. The Rules to
Regulate Proceedings for Contempt of the Supreme Court, 1975 C
and Form I lays down the manner in which notice is to be issued –
The only requirement of the Rules and the Form is that the brief
nature of the contempt is to be stated in the Form – There is no
requirement of giving all the documents with the Form – A perusal
of the order whereby contempt proceedings were initiated clearly D
shows that the grounds for initiating contempt were reflected in the
order itself – Therefore, the notice was legal and valid.
Contempt of Court – Supreme Court – Challenge to suo motu
proceedings – Two letters dated 20.03.2019 and 19.03.2019
admittedly signed by contemnor Nos. 1 & 2 were circulated – The E
tenor of the letters was highly disrespectful, and scandalous and
scurrilous allegations were levelled against the two Judges of the
Supreme Court – A Bench of Supreme Court issued notice to the
contemnors – The contemnors contended that the proceedings are
not suo motu proceedings and, therefore, should not have been
entertained without the consent of the Attorney-General or Solicitor- F
General – Held: Contempt is basically a matter between the Court
and the contemnor – Any person can inform the Court of the
contempt committed – If he is to be arrayed as a party then the
contempt will be in his name but when the Court does not array him
as a party, the Court can on the basis of the information itself take G
suo motu of the contempt – In the present case, the Court on the
basis of the information itself took suo motu note of the contempt
and the matter was then placed before the Hon’ble the Chief Justice
for listing it before the appropriate Bench – The matter listed was a
suo motu contempt petition right from the beginning.
H
1016 SUPREME COURT REPORTS [2020] 7 S.C.R.
A Contempt of Court – Supreme Court – Suo motu proceedings
– Judge in their own cause – Two letters dated 20.03.2019 and
19.03.2019 admittedly signed by contemnor Nos. 1 & 2 were
circulated – The tenor of the letters was highly disrespectful, and
scandalous and scurrilous allegations were levelled against the two
Judges of the Supreme Court – A Bench of Supreme Court issued
B
notice to the contemnors – The Bench also directed that the matter
be placed before the Chief Justice of India to constitute an
appropriate Bench to hear and decide the contempt case – The
contemnors contended that the Bench could not have issued the
notice without the matter being placed before it and further that
C this amounted to them acting as judges in their own cause – Held:
The Bench was already dealing with Suo Motu Contempt Petition
(Crl.) No. 1 of 2019 – The said letters were placed before the Bench
– After issuing notice, the bench directed that the matter be placed
before Hon’ble Chief Justice for placing before the appropriate
Bench – This is valid and proper procedure and the Bench did not
D
act as Judge in their own cause – Only notice was issued and
thereafter the matter was assigned to another Bench.
Constitution of India – Freedom to criticise the judgments of
the Court – Held: Any citizen of the Country can criticise the
judgments delivered by any Court including the Supreme Court –
E However, no party has the right to attribute motives to a Judge or to
question the bonafides of the Judge or to raise questions with regard
to the competence of the Judge – Judges are part and parcel of the
justice delivery system.
Contempt of Court – Supreme Court – Suo motu proceedings
F – Two letters were circulated – The tenor of two letters dated
20.03.2019 and 19.03.2019 admittedly signed by contemnor Nos.
1 & 2 was highly disrespectful, and scandalous and scurrilous
allegations were levelled against the two Judges of the Supreme
Court – The notice was issued to all the four alleged contemnors –
G The contemnor no. 4 filed an application for discharge and his
application was allowed – Held: The first letter dated 20.03.2019
by contemnor No. 1 is basically in relation to the order dated
12.03.2019 in Suo Motu Contempt Petition (Crl.) No.1 of 2019, in
which contemnor No. 4 was held guilty of contempt and notice was
issued to contemnor No. 4 for hearing him on issue of punishment –
H
RE : VIJAY KURLE & ORS. 1017
In the meantime, both the contemnors No. 1 and 2 sent these letters A
praying that action be taken against the members of the Bench of
the Supreme Court – The contemnor no. 3 indicated in his discharge
application that the letters sent by contemnors no. 1 and 2 were
sent with the knowledge and consent of contemnor no. 3 – Also, the
contemnor no. 3, while arguing the matter was supporting each
B
and everything said in letters by contemnors no. 1 and 2 – Therefore,
all three alleged contemnor nos. 1, 2 and 3 were working in tandem
and making scurrilous and scandalous allegations against the
members of the Bench of Supreme Court, probably with intention
that the members would thereafter not take action against contemnor
no. 4 in Suo Motu Contempt Petition (Crl.) No.1 of 2019 – Thus, all C
three alleged contemnors no. 1, 2 and 3 are guilty of contempt.
Holding all three contemnors guilty of contempt, the Court
HELD: Powers of the Supreme Court
1.1. A bare reading of Article 129 clearly shows that this D
Court being a Court of Record shall have all the powers of such
a Court of Record including the power to punish for contempt of
itself. This is a constitutional power which cannot be taken away
or in any manner abridged by statute. [Para 7][1026-F]
1.2 Article 142 also provides that this Court can punish E
any person for contempt of itself but this power is subject to the
provisions of any law made by parliament. A comparison of the
provisions of Article 129 and clause (2) of Article 142 clearly
shows that whereas the founding fathers felt that the powers under
clause (2) of Article 142 could be subject to any law made by
parliament, there is no such restriction as far as Article 129 is F
concerned. The power under clause (2) of Article 142 is not the
primary source of power of Court of Record which is Article 129
and there is no such restriction in Article 129. [Para 7]
[1027-C-D]
1.3 This Court has framed rules in this regard known as G
The Rules to Regulate Proceedings for Contempt of the Supreme
Court, 1975. A bare perusal of Rule 3 shows that there are 3
ways for initiating contempt proceedings. The first is suo motu,
the second is on a petition made by the Attorney General or the
H
1018 SUPREME COURT REPORTS [2020] 7 S.C.R.
A Solicitor General, and the third is on the basis of a petition made
by any person and where criminal contempt is involved then the
consent of the Attorney General or the Solicitor General is
necessary. [Paras 17 and 18][1032-G][1033-B-C]
1.4 In exercise of the aforesaid powers the Contempt of
B Courts Act, 1971 was enacted by Parliament. Section 15 deals
with cognizance of criminal contempt and the opening portion of
Section 15 clearly provides that the Supreme Court or the High
Courts may take action (i) suo motu (ii) on a motion moved by the
Advocate General in case of High Court or Attorney General/
Solicitor General in the case of Supreme Court and (iii) on a
C petition by any other person with the consent in writing of the
Advocate General/Attorney General/Solicitor General as the case
may be. [Para 23][1035-B-D]
1.5 A Constitution Bench of this Court in Supreme Court
Bar Association v. Union of India held that Section 15 is not a
D substantive provision conferring contempt jurisdiction and,
therefore, is only a procedural section especially in so far as suo
motu contempts are concerned. It is thus clear that the powers of
the Supreme Court to punish for contempt committed of itself is
a power not subject to the provisions of the Act. Therefore, the
E only requirement is to follow a procedure which is just, fair and in
accordance with the rules framed by this Court. [Para 29][1039-
G-H]
2. This Court is clearly of the view that the powers of the
Supreme Court to initiate contempt are not in any manner limited
F by the provisions of the Act. This Court is vested with the
constitutional powers to deal with the contempt. Section 15 is
not the source of the power to issue notice for contempt. It only
provides the procedure in which such contempt is to be initiated
and this procedure provides that there are three ways of initiating
a contempt – (i) suo motu (ii) on the motion by the Advocate
G General/Attorney General/Solicitor General and (iii) on the basis
of a petition filed by any other person with the consent in writing
of the Advocate General/Attorney General/Solicitor General. As
far as suo motu petitions are concerned, there is no requirement
for taking consent of anybody because the Court is exercising its
H inherent powers to issue notice for contempt. This is not only
RE : VIJAY KURLE & ORS. 1019
clear from the provisions of the Act but also clear from the Rules A
to Regulate Proceedings for Contempt of the Supreme Court,
1975 laid down by this Court. [Para 31][1040-G-H][1041-A-B]
Objections as to issuance of notice
3.1 The only requirement of the Rules and the Form is that
the brief nature of the contempt is to be stated in the Form. There B
is no requirement of giving all the documents with the Form. A
perusal of the order whereby contempt proceedings were initiated
clearly shows that the grounds for initiating contempt were
reflected in the order itself. This order was admittedly sent to
the alleged contemnors. Therefore, in the opinion of this Court, C
the notice was strictly in accordance with Form-1, which only
requires that the notice should briefly state the nature of the
contempt. Once the order was attached to the notice that became
part and parcel of the notice itself. [Para 32][1042-B-D]
Whether these proceedings can be termed suo motu? D
4.1 As far as the present case is concerned, the order passed
by this Court clearly shows that this Court after taking note of
the letter sent by the President of the Bombay Bar Association
and the President of the Bombay Incorporated Law Society, the
annexures attached to this letter and after specifically noting the E
prayers made in the complaints of alleged Contemnor nos. 1 and
2 along with the allegations made in both the complaints was of
the view that the allegations levelled against the Members of
the Bench were scandalous in nature and therefore, notice was
issued to the alleged contemnors and against Contemnor no. 4
who has since been discharged. [Para 34][1044-B-C] F
4.2 When this Court reads the order dated 27.03.2019 in
suo motu Contempt Petition (Crl.) No. 1 of 2019 as a whole, it is
more than obvious that the Court itself took cognizance of the
complaints and the documents thereto as well as the allegations
levelled therein. Contempt is basically a matter between the Court G
and the contemnor. Any person can inform the Court of the
contempt committed. If he is to be arrayed as a party then the
contempt will be in his name but when the Court does not array
H
1020 SUPREME COURT REPORTS [2020] 7 S.C.R.
A him as a party, the Court can on the basis of the information itself
take suo motu notice of the contempt. In the present case, the
Court on the basis of the information itself took suo motu note of
the contempt and the matter was then placed before Hon’ble the
Chief Justice for listing it before the appropriate Bench. The
matter has been listed as a suo motu contempt petition right from
B
the beginning and dealt with as such. [Paras 34 and 35]
[1044-C-G]
Judge in their own Cause
5. This Court is clearly of the view that the Bench was fully
C justified in taking note of the letter sent by the Bombay Bar
Association and the President of the Bombay Incorporated Law
Society and the documents annexed thereto which included the
complaints sent by alleged Contemnors no. 1 and 2. After issuing
notice the bench directed that the matter be placed before Hon’ble
the Chief Justice for placing before the appropriate bench. This
D is valid and proper procedure and the bench did not act as judge
in their own cause. Only notice was issued and thereafter the
matter was assigned to this bench. [Para 40][1047-F-H]
Source of Information
E 6.1 In the instant case, the disclosure of the information is
made in the order itself where it is clearly recorded that the action
has been taken on the basis of the letter sent by the President of
the Bombay Bar Association and the President of the Bombay
Incorporated Law Society to the President of India and the Chief
Justice of India in response to the complaints made by the alleged
F contemnors. The complaints of contemnor nos. 1 and 2 were also
attached with the letters and after taking note not only of the
letter of the President of the Bombay Bar Association and the
President of the Bombay Incorporated Law Society but also the
prayer clauses of both the complaints sent by the alleged
G contemnors and the scandalous allegations made in the
complaints, the notice was issued. The source of information is
the letter sent by the Bombay Bar Association and the President
of the Bombay Incorporated Law Society, as is apparent from the
order initiating contempt proceedings. [Para 43][1048-G-H]
[1049-A-C]
H
RE : VIJAY KURLE & ORS. 1021
Freedom to criticise A
7.1 There can be no manner of doubt that any citizen of the
country can criticise the judgments delivered by any Court
including this Court. However, no party has the right to attribute
motives to a Judge or to question the bona fides of the Judge or
to raise questions with regard to the competence of the Judge. B
Judges are part and parcel of the justice delivery system. By and
large Judges are reluctant to take action under contempt laws
when a personal attack is made on them. However, when there is
a concerted attack by members of the Bar who profess to be the
members of an organization having a large following, then the
Court cannot shut its eyes to the slanderous and scandalous C
allegations made. If such allegations which have not only been
communicated to the President of India and the Chief Justice of
India, but also widely circulated on social media are permitted to
remain unchallenged then the public will lose faith not only in
those particular Judges but also in the entire justice delivery D
system and this definitely affects the majesty of law.
[Para 48][1051-G-H][1052-A-B]
Defence of Truth
8.1 Truth as a defence is available to any person charged
with contempt of Court. However, on going through all the written E
arguments and the pleadings, other than saying that the Judges
had misinterpreted the judgments of this Court or had ignored
them or that Judge of the Supreme Court was biased, there is no
material placed on record to support this defence. The allegations
are also scurrilous and scandalous and such allegations cannot F
be permitted to be made against the Judges of highest Court of
the country. [Para 95][1077-A-C]
Supreme Court Bar Association v. Union of India (1998)
4 SCC 409 : [1998] 2 SCR 795 – followed.
Pritam Pal v. High Court of Madhya Pradesh, Jabalpur G
Through Registrar 1992 (1) SCALE 416; Pallav Sheth
v. Custodian & Ors. (2001) 7 SCC 549 : [2001] 1 Suppl.
SCR 387; Dr. D.C. Saxena v. Hon’ble the Chief Justice
of India (1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677;
H
1022 SUPREME COURT REPORTS [2020] 7 S.C.R.
A In Re: Arundhati Roy (2002) 3 SCC 343 : [2002] 2
SCR 213 – relied on.
Biman Basu v. Kallol Guha Thakurta & Another. (2010)
8 SCC 673 : [2010] 10 SCR 631 – inapplicable.
Sukhdev Singh Sodhi v. The Chief Justice and Judges
B of the Pepsu High Court [1954] SCR 454; Shri C. K.
Daphtary and Others v. Shri O.P. Gupta and Others
(1971) 1 SCC 626 : [1971] Suppl. SCR 76; P.N. Duda
v. P. Shiv Shanker and Others (1988) 3 SCC 167 :
[1988] 3 SCR 547; Anil Kumar Gupta v. K. Subba Rao
C and Ors. ILR (1974) 1 Del 1; Delhi Judicial Service
Association, Tis Hazari Court, Delhi v. State of Gujarat
and Ors. (1991) 4 SCC 406 : [1991] 3 SCR 936; In
Re: Vinay Chandra Mishra (1995) 2 SCC 584 : [1995]
2 SCR 638; Bal Thackrey v. Harish Pimpalkhute and
Ors. (2005) 1 SCC 254 : [2004] 6 Suppl. SCR 477;
D Divine Retreat Centre v. State of Kerala & Others. (2008)
3 SCC 542 : [2008] 4 SCR 701; Aarish Asgar Qureshi
v. Fareed Ahmed Qureshi and Anr. 2019 (4) SCALE
606 – referred to.
The Law of Contempt: Contempt of Courts and
E Legislatures, Fifth Edn., Lexis Nexis Butterworths
Wadhwa, Nagpur (2013) – referred to.
Case Law Reference
[1954] SCR 454 referred to Para 8
F [1971] Suppl. SCR 76 referred to Para 9
[1988] 3 SCR 547 referred to Para 13
1992 (1) SCALE 416 relied on Para 20
[1991] 3 SCR 936 referred to Para 21
G [1995] 2 SCR 638 referred to Para 22
[1998] 2 SCR 795 followed Para 24
[2001] 1 Suppl. SCR 387 relied on Para 30
[2010] 10 SCR 631 inapplicable Para 33
H
RE : VIJAY KURLE & ORS. 1023
[2004] 6 Suppl. SCR 477 referred to Para 33 A
[2008] 4 SCR 701 referred to Para 40
[1996] 3 Suppl. SCR 677 relied on Para 46
[2002] 2 SCR 213 relied on Para 46
2019 (4) SCALE 606 referred to Para 81 B
INHERENT JURISDICTION: Suo Motu Contempt Petition
(Criminal) No. 2 of 2019.
Petition for recall of the Judgment dated 27.04.2020 in NFL Vs.
Tuncky (2013) 9 SCC 600 and in M.S. Ahlawat Vs. State (2000) 1
C
SCC 27.
Sidharth Luthra, Sr. Adv. (A.C.), Nitin Saluja, Nobin Akhtar,
Shivanshu Singh, Manish Jha, Sheezan Hashmi, Paratho Sorkar, Shivam
Mehra, Jairam Yadav, Prem Sunderjun, M/s. Rajan Tripathi, Vijay Dubey,
T.N. Dubey, Akhilesh Kr. Pandey, S.K. Pandey, Gopal Sharan Pathak,
D
Harsh Singhal, Rajesh Shrma, Firoj Saifi, Rajeev Kr. Gupta, Raman
Kumar, Vishal Arun Kumar, Pawan Kr., D.S. Badiar, Ishwarlal Agarwal,
Ghanshyam Upadhyay, Abhishek Mishra, Dipali Ojha, Nicky Pokar,
Manan Bansal, Rajat Kapoor, Anjan Datta, M.S. Gahlan,Birendra Pandey,
Rahul Gupta, Shashank Sharma, Baijnath Yadav, Fatima, Balraj Dewan,
Hemant Kr. Srivastava, Prateek Khandelwal, Kajal Singh, Advs. for the E
appearing parties.
Mr. Nilesh C. Ojha, Respondent. (In person).
The Judgment of the Court was delivered by
DEEPAK GUPTA, J. F
1. A Bench of this Court while dealing with Suo Motu Contempt
Petition (Criminal) No.1 of 2019 took note of a letter dated 23.03.2019
received by the office of the Judges of the Bench on 25.03.2019. This
was a copy of the letter sent by the President of the Bombay Bar
Association and the President of the Bombay Incorporated Law Society G
to the President of India, Chief Justice of India and the Chief Justice of
the Bombay High Court. In the said letter, reference was made to two
complaints – one made by the Indian Bar Association, dated 20.03.2019
through alleged contemnor no. 1, Shri Vijay Kurle, State President of
Maharashtra and Goa of the Indian Bar Association, and the second
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1024 SUPREME COURT REPORTS [2020] 7 S.C.R.
A complaint dated 19.03.2019 made by alleged contemnor no. 2, Shri Rashid
Khan Pathan, National Secretary of the Human Rights Security Council.
It was mentioned that these complaints have not only been sent to the
President of India and the Chief Justice of India but also have been
circulated in the social media and the complaints were attached as
Annexures-1 and 2 to the said letter. The Bench took note of the letter
B
and the complaints attached to the said letter and specifically noted the
prayers made in both the complaints and found that both the complaints
are substantially similar. The Bench on noting the allegations made in
the complaints was of the view that scandalous allegations have been
made against the members of the said Bench and, therefore, notice was
C issued to Shri Vijay Kurle, alleged contemnor no. 1, Shri Rashid Khan
Pathan, alleged contemnor no. 2, Shri Nilesh Ojha, alleged contemnor
no. 3 and Shri Mathews Nedumpara, alleged contemnor no. 4. The Bench
also directed that the matter be placed before the Chief Justice of India
to constitute an appropriate Bench to hear and decide the contempt
case.
D
2. After notice was issued, Shri Nedumpara filed an application,
being Criminal M.P. No. 60568/2019 for discharge in which he stated
that he barely knew Shri Vijay Kurle and Shri Nilesh Ojha, and did not
know Shri Rashid Khan Pathan at all. He denied any role in sending
those complaints. Therefore, vide order dated 02.09.2019 we had
E discharged Shri Mathews Nedumpara but made it clear that if during
the course of proceedings any evidence comes up against him, he would
be summoned again. On the same date, Shri Nilesh Ojha who appears in
person stated that the Registry has not given complete copy of the
annexures attached with the letter of the Bombay Bar Association and
F Bombay Incorporated Law Society to him along with the notice. The
Registry was directed to supply the annexures to him. On 30.09.2019
we were informed that the Registry has not given complete annexures.
Thereafter, we had directed the Registry to supply 3 sets of Annexures
P1 to P15 attached with the letter which were sent to alleged contemnor
nos. 1 to 3. On the same date, we appointed Shri Sidharth Luthra, learned
G senior counsel, as amicus curiae to assist the Court. On 04.11.2019,
alleged contemnor nos. 1 to 3 admitted that all the documents have been
supplied to them and thereafter, fresh replies were permitted to be filed.
3. In the letter of the Bombay Bar Association and the Bombay
Incorporated Law Society reference was made not only to the allegations
H in the complaints levelled against the 2 Hon’ble Judges of this Court but
RE : VIJAY KURLE & ORS. 1025
[DEEPAK GUPTA, J.]
also other allegations were made which indicated that alleged contemnor A
nos. 1 to 3 had committed contempt of the Bombay High Court also.
On 09.12.2019 we had clarified that in view of the original order taking
suo motu notice and the documents placed on record, the charge against
Shri Vijay Kurle, alleged contemnor no. 1 was only in respect of the
scandalous allegations levelled against 2 Judges of this Court in the letter
B
dated 20.03.2019 sent by him as State President of Maharashtra and
Goa of the Indian Bar Association. We have also clarified that as far as
Shri Rashid Khan Pathan, alleged contemnor no. 2, is concerned, the
charge against him only relates to the scandalous allegations made against
2 Judges of this Court in the letter dated 19.03.2019 sent by him. As far
as Shri Nilesh Ojha, alleged contemnor no. 3 was concerned, the only C
document against him was also the letter dated 20.03.2019 which letter
was not signed by him, but admittedly, he is President of the Indian Bar
Association. We had given opportunity to Shri Nilesh Ojha to explain his
position whether the letter dated 20.03.2019 was sent with his consent
or under his authority.
D
4. It would be pertinent to mention that Shri Vijay Kurle and Shri
Rashid Khan Pathan have not denied that they are the authors of the
letters which are signed by them.
5. The basis of the present contempt are the two letters dated
20.03.2019 and 19.03.2019 admittedly signed by alleged contemnor nos. E
1 and 2 i.e. Shri Vijay Kurle and Shri Rashid Khan Pathan respectively.
These letters are very lengthy running into more than 250 pages combined.
Therefore, it would not be feasible to extract the entire letters but we
have no doubt in our mind that the tenor of the letters is highly
disrespectful, and scandalous and scurrilous allegations have been levelled
against 2 Judges of this Court. F
6. The three alleged contemnors have raised a number of
preliminary issues. We may summarise the same as follows:-
(i) That the Bench of Justice R. F. Nariman and Justice Vineet
Saran could not have taken cognizance of the case because G
the case was not assigned to them by the Chief Justice and
that both the Judges acted as Judge in their own cause.
(ii) That the Bench has not suo motu taken notice of the contempt
and therefore the Registry cannot treat it as a suo motu
petition.
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1026 SUPREME COURT REPORTS [2020] 7 S.C.R.
A (iii) That even in suo motu contempt proceedings the consent of
the Attorney General is necessary.
(iv) That the proper procedure of framing a charge is not followed
because the defects at the initial stage cannot be cured by
later orders/developments.
B (v) That the Judges were bound to disclose the source of
information.
Powers of the Supreme Court
7. Before we deal with the objections individually, we need to
C understand what are the powers of the Supreme Court of India in relation
to dealing with contempt of the Supreme Court in the light of Articles
129 and 142 of the Constitution of India when read in conjunction with
the Contempt of Courts Act, 1971. According to the alleged contemnors,
the Contempt of Courts Act is the final word in the matter and if the
procedure prescribed under the Contempt of Courts Act has not been
D followed then the proceedings have to be dropped. On the other hand,
Shri Sidharth Luthra, learned amicus curiae while making reference to a
large number of decisions contends that the Supreme Court being a
Court of Record is not bound by the provisions of the Contempt of Courts
Act. The only requirement is that the procedure followed is just and fair
E and in accordance with the principles of natural justice.
Article 129 of the Constitution of India reads as follows:
“129. Supreme Court to be a court of record.- The Supreme
Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself.”
F
A bare reading of Article 129 clearly shows that this Court being
a Court of Record shall have all the powers of such a Court of Record
including the power to punish for contempt of itself. This is a constitutional
power which cannot be taken away or in any manner abridged by statute.
Article 142 of the Constitution of India reads as follows:
G
“142. Enforcement of decrees and orders of Supreme Court
and orders as to discovery, etc.- (1) The Supreme Court in the
exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or
matter pending before it, and any decree so passed or order so
H
RE : VIJAY KURLE & ORS. 1027
[DEEPAK GUPTA, J.]
made shall be enforceable throughout the territory of India in such A
manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the B
territory of India, have all and every power to make any order for
the purpose of securing the attendance of any person, the discovery
or production of any documents, or the investigation or punishment
of any contempt of itself.”
Article 142 also provides that this Court can punish any person C
for contempt of itself but this power is subject to the provisions of any
law made by parliament. A comparison of the provisions of Article 129
and clause (2) of Article 142 clearly shows that whereas the founding
fathers felt that the powers under clause (2) of Article 142 could be
subject to any law made by parliament, there is no such restriction as far D
as Article 129 is concerned. The power under clause (2) of Article 142
is not the primary source of power of Court of Record which is Article
129 and there is no such restriction in Article 129. Samaraditya Pal in
the Law of Contempt1 has very succinctly stated the legal position as
follows:
E
“Although the law of contempt is largely governed by the 1971
Act, it is now settled law in India that the High Courts and the
Supreme Court derive their jurisdiction and power from Articles
215 and 129 of the Constitution. This situation results in giving
scope for “judicial self-dealing”.
F
The High Courts also enjoy similar powers like the Supreme Court
under Article 215 of the Constitution. The main argument of the alleged
contemnors is that notice should have been issued in terms of the
provisions of the Contempt of Courts Act and any violation of the
Contempt of Courts Act would vitiate the entire proceedings. We do not
G
accept this argument. In view of the fact that the power to punish for
contempt of itself is a constitutional power vested in this Court, such
power cannot be abridged or taken away even by legislative enactment.
1
Pgs. 9-10, The Law of Contempt: Contempt of Courts and Legislatures, Fifth Edn.,
LexisNexis Butterworths Wadhwa, Nagpur (2013) H
1028 SUPREME COURT REPORTS [2020] 7 S.C.R.
A 8. To appreciate the rival contention, we shall have to make
reference to a number of decisions relied upon by both the parties. The
first judgment on the point is Sukhdev Singh Sodhi v. The Chief Justice
and Judges of the Pepsu High Court2. It would be pertinent to mention
that the said judgment was given in the context of the Contempt of
Courts Act, 1952. The issue before this Court in the said case was
B
whether contempt proceedings could said to be the proceedings under
the Criminal Procedure Code, 1973 (Cr.PC) and the Supreme Court had
the power to transfer the proceedings from one court to another under
the Cr.PC. Rejecting the prayer for transfer, this Court held as follows:-
“….We hold therefore that the Code of Criminal Procedure does
C
not apply in matters of contempt triable by the High Court. The
High Court can deal with it summarily and adopt its own
procedure. All that is necessary is that the procedure is fair and
that the contemner is made aware of the charge against him and
given a fair and reasonable opportunity to defend himself. This
D rule was laid down by the Privy Council in In re Pollard (L.R. 2
P.C. 106 at 120) and was followed in India and in Burma in In re
Vallabhdas (I.L.R. 27 Bom. 394 at 390) and Ebrahim Mamoojee
Parekh v. King Emperor (I.L.R. 4 Rang. 257 at 259-261). In our
view that is still the law.”
E 9. A Constitution Bench of this Court in Shri C. K. Daphtary
and Others v. Shri O.P. Gupta and Others3 was dealing with a case
where the contemnor had published a pamphlet casting scurrilous
aspersions on 2 Judges of this Court. During the course of argument, the
contemnor raised a plea that all the evidence has not been furnished to
him and made a request that the petitioner be asked to furnish the
F
“pamphlet” or “book” annexed to the petition. The Court rejected this
argument holding that the booklet/pamphlet had been annexed to the
petition in original and the Court had directed that the matter be decided
on affidavits.
G 10. In respect of the absence of a specific charge being framed,
the Court held that a specific charge was not required to be framed and
the only requirement was that a fair procedure should be followed. Dealing
with the Contempt of Courts Act, 1952 this Court held as follows:-
2
1954 SCR 454
3
H 1971 (1) SCC 626
RE : VIJAY KURLE & ORS. 1029
[DEEPAK GUPTA, J.]
“58. We are here also not concerned with any law made by A
Parliament. Article 129 shows that the Supreme Court has all the
powers of a Court of Record, including the power to punish for
contempt of itself; and Article 142(2) goes further and enables us
to investigate any contempt of this Court.”
11. Thereafter, this Court approved the observations in Sukhdev B
Singh Sodhi’s case (supra) and held as follows:-
“78. In our view that is still the law. It is in accordance with the
practice of this Court that a notice was issued to the respondents
and opportunity given to them to file affidavits stating facts and
their contentions. At one stage, after arguments had begun C
Respondent No. 1 asked for postponement of the case to engage
some lawyers who were engaged in fighting elections. We refused
adjournment because we were of the view that the request was
not reasonable and was made with a view to delay matters. We
may mention that the first respondent fully argued his case for a
number of days. The procedure adopted by us is the usual D
procedure followed in all cases.”
12. According to the alleged contemnors, both the aforesaid
judgments are per incuriam after coming into force of the Contempt of
Courts Act, 1971. They are definitely not per incuriam because they
have been decided on the basis of the law which admittedly existed, but E
for the purposes of this case, we shall treat the argument of the alleged
contemnors to be that the judgments are no longer good law and do not
bind this Court. It has been contended by the alleged contemnors that
both the aforesaid cases are overruled by later judgments. We shall now
refer to some of the decisions cited by the parties. F
13. In P.N. Duda v. P.Shiv Shanker and Others4 the respondent,
Shri P. Shiv Shiv Shanker, who was a former judge of the High Court
and was the Minister for Law, Justice and Company Affairs delivered a
speech which was said to be contemptuous. A petition was filed by the
petitioner P. N. Duda who was an advocate of this Court but this Court G
declined to initiate contempt proceedings. At the outset, we may note
that while giving the reasons for not initiating contempt, though this Court
held that the contempt petition was not maintainable, it went into the
merits of the speech delivered by Shri P. Shiv Shanker and held that
4
(1988) 3 SCC 167 H
1030 SUPREME COURT REPORTS [2020] 7 S.C.R.
A there was no imminent danger of interference with the administration of
the justice and bringing administration into disrepute. It was held that
Shri P. Shiv Shanker was not guilty of contempt of this Court. Having
held so, the Court went on to decide whether the petition could have
been entertained on behalf of Shri Duda. In the said petition, Shri Duda
had written a letter to the Attorney General seeking consent for initiating
B
contempt proceedings against Shri P. Shiv Shanker. A copy of the said
letter was also sent to the Solicitor General of India. While seeking
consent, the petitioner had also stated that the Attorney General may be
embarrassed to give consent for prosecution of the Law Minister and in
view of the said allegations, the Attorney General felt that the credibility
C and authority of the office of the Attorney General was undermined and
therefore did not deny or grant sanction for prosecution. The Court held
that the petitioner could not move the Court for initiating contempt
proceedings against the respondent without consent of the Attorney
General and the Solicitor General. The relevant portion of the judgment
reads as follows:-
D
“39. The question of contempt of court came up for consideration
in the case of C.K. Daphtary v. O.P. Gupta. In that case a petition
under Article 129 of the Constitution was filed by Shri C.K.
Daphtary and three other advocates bringing to the notice of this
Court alleged contempt committed by the respondents. There this
E court held that under Article 129 of the Constitution this Court
had the power to punish for contempt of itself and under Article
143(2) it could investigate any such contempt. This Court reiterated
that the Constitution made this Court the guardian of fundamental
rights. This Court further held that under the existing law of
F contempt of court any publication which was calculated to interfere
with the due course of justice or proper administration of law
would amount to contempt of court. A scurrilous attack on a Judge,
in respect of a judgment or past conduct has in our country the
inevitable effect of undermining the confidence of the public in
the Judiciary ; and if confidence in Judiciary goes administration
G of justice definitely suffers. In that case a pamphlet was alleged
to have contained statements amounting to contempt of the court.
As the Attorney General did not move in the matter, the President
of the Supreme Court bar and the other petitioners chose to bring
the matter to the notice of the court. It was alleged that the said
H President and the other members of the bar have no locus standi.
RE : VIJAY KURLE & ORS. 1031
[DEEPAK GUPTA, J.]
This Court held that the court could issue a notice suo motu. The A
President of the Supreme Court bar and other petitioners were
perfectly entitled to bring to the notice of the court any contempt
of the court. The first respondent referred to Lord Shawcross
Committee’s recommendation in U.K. that “proceedings should
be instituted only if the Attorney General in his discretion considers
B
them necessary”. This was only a recommendation made in the
light of circumstances prevailing in England. But that is not the
law in India, this Court reiterated. It has to be borne that decision
was rendered on March 19, 1971 and the present Act in India
was passed on December 24, 1971. Therefore that decision cannot
be of any assistance. We have noticed Sanyal Committee’s C
recommendations in India as to why the Attorney General should
be associated with it, and thereafter in U.K. there was report of
Phillimore Committee in 1974. In India the reason for having the
consent of the Attorney General was examined and explained by
Sanyal Committee Report as noticed before.”
D
14. The alleged contemnors contended that the last portion of the
aforesaid paragraph shows that the judgment in C. K. Daphtary’s case
(supra) having been delivered prior to the enactment of Contempt of
Courts Act, 1971 is no longer applicable. We may however point out that
in the very next paragraph in the same judgment, it was held as follows:-
E
“40. Our attention was drawn by Shri Ganguly to a decision of
the Allahabad High Court in G.N. Verma v. Hargovind Dayal
(AIR 1975 All 52) where the Division Bench reiterated that Rules
which provide for the manner in which proceedings for contempt
of court should be taken continue to apply even after the enactment
of the Contempt of Courts Act, 1971. Therefore cognizance could F
be taken suo motu and information contained in the application by
a private individual could be utilised. As we have mentioned
hereinbefore indubitably cognizance could be taken suo motu by
the court but members of the public have also the right to move
the court. That right of bringing to the notice of the court is G
dependent upon consent being given either by the Attorney General
or the Solicitor General and if that consent is withheld without
reasons or without consideration of that right granted to any other
person under Section 15 of the Act that could be investigated in
an application made to the court.”
H
1032 SUPREME COURT REPORTS [2020] 7 S.C.R.
A 15. The alleged contemnors rely on certain observations in the
concurring judgment of Justice Ranganathan in the same judgment
wherein he has approved the following passage from a judgment of the
Delhi High Court in Anil Kumar Gupta v. K. Subba Rao and Ors.5:-
“The office is to take note that in future if any information is
B lodged even in the form of a petition inviting this Court to take
action under the Contempt of Courts Act or Article 215 of the
Constitution, where the informant is not one of the persons named
in Section 15 of the said Act, it should not be styled as a petition
and should not be placed for admission on the judicial side. Such a
petition should be placed before the Chief Justice for orders in
C
Chambers and the Chief Justice may decide either by himself or
in consultation with the other judges of the Court whether to take
any cognizance of the information. The office is directed to strike
off the information as “Criminal Original No. 51 of 1973” and to
file it.”
D Thereafter Justice Ranganathan made the following observation:-
“54....I think that the direction given by the Delhi High Court sets
out the proper procedure in such cases and may be adopted, at
least in future, as a practice direction or as a rule, by this Court
and other High Courts….”
E
16. Relying upon the aforesaid observations in the judgment
delivered by Justice Ranganathan it is submitted that the petition could
not have been placed for admission on the judicial side but should have
been placed before the Chief Justice and not before any other Bench.
We are not at all in agreement with the submission. What Justice
F Ranganathan observed is an obiter and not the finding of the Bench and
this is not the procedure prescribed under the Rules of this Court.
17. This Court has framed rules in this regard known as The
Rules to Regulate Proceedings for Contempt of the Supreme Court,
1975 (for short ‘the Rules’) and relevant portion of Rule 3 of the Rules
G reads as follows:-
“3. In case of contempt other than the contempt referred to in
rule 2, the Court may take action –
(a) suo motu, or
5
H ILR (1974) 1 Del 1
RE : VIJAY KURLE & ORS. 1033
[DEEPAK GUPTA, J.]
(b) on a petition made by Attorney-General, or Solicitor- General, A
or
(c) on a petition made by any person, and in the case of a criminal
contempt with the consent in writing of the Attorney-General
or the Solicitor-General.”
B
18. A bare perusal of Rule 3 shows that there are 3 ways for
initiating contempt proceedings. The first is suo motu, the second is on a
petition made by the Attorney General or the Solicitor General, and the
third is on the basis of a petition made by any person and where criminal
contempt is involved then the consent of the Attorney General or the
Solicitor General is necessary. Rules 4 and 5 prescribe for the manner C
of filing of a petition under Rules 3(b) and 3(c). Rule 4 lays down the
requirements of a petition to be filed under Rules 3(b) and 3(c) and Rule
5 requires that every petition under Rule 3(b) or Rule 3(c) shall be placed
before the Court for preliminary hearing. Rule 6 requires notice to the
person charged to be in terms of Form I. Rule 6 reads as follows:-
D
“6. (1) Notice to the person charged shall be in Form I. The
person charged shall, unless otherwise ordered, appear in
person before the Court as directed on the date fixed for
hearing of the proceeding, and shall continue to remain present
during hearing till the proceeding is finally disposed of by order
of the Court. E
(2) When action is instituted on petition, a copy of the petition
along with the annexure and affidavits shall be served upon
the person charged.”
19. These Rules have been framed by the Supreme Court in F
exercise of the powers vested in it under Section 23 of the Contempt of
Courts Act, 1971 and they have been notified with the approval of Hon’ble
the President of India.
20. In Pritam Pal v. High Court of Madhya Pradesh, Jabalpur
Through Registrar6, a 2 Judge Bench of this Court held as follows:- G
“15. Prior to the Contempt of Courts Act, 1971, it was held that
the High Court has inherent power to deal with a contempt of
itself summarily and to adopt its own procedure, provided that it
gives a fair and reasonable opportunity to the contemnor to defend
6
1992 (1) SCALE 416 H
1034 SUPREME COURT REPORTS [2020] 7 S.C.R.
A himself. But the procedure has now been prescribed by Section
15 of the Act in exercise of the powers conferred by Entry 14,
List III of the Seventh Schedule of the Constitution. Though the
contempt jurisdiction of the Supreme Court and the High Court
can be regulated by legislation by appropriate Legislature under
Entry 77 of List I and Entry 14 of List III in exercise of which the
B
Parliament has enacted the Act of 1971, the contempt jurisdiction
of the Supreme Court and the High Court is given a constitutional
foundation by declaring to be ‘Courts of Record’ under Articles
129 and 215 of the Constitution and, therefore, the inherent power
of the Supreme Court and the High Court cannot be taken away
C by any legislation short of constitutional amendment. In fact,
Section 22 of the Act lays down that the provisions of this Act
shall be in addition to and not in derogation of the provisions of
any other law relating to Contempt of Courts. It necessarily follows
that the constitutional jurisdiction of the Supreme Court and the
High Court under Articles 129 and 215 cannot be curtailed by
D
anything in the Act of 1971...”
21. In Delhi Judicial Service Association, Tis Hazari Court,
Delhi v. State of Gujarat and Ors.7 a three-Judge Bench of this Court
relied upon the judgment in the case of Sukhdev Singh Sodhi (supra)
and held that the Supreme Court had inherent jurisdiction or power to
E punish for contempt of inferior courts under Article 129 of the Constitution
of India.
22. A three-Judge Bench of this Court In Re: Vinay Chandra
Mishra8 discussed the law on this point in detail. The Court while holding
the respondent guilty for contempt had not only sentenced him to simple
F imprisonment for a period of 6 weeks which was suspended but also
suspended his advocacy for a period of 3 years, relying upon the powers
vested in this Court under Article 129 and 142 of the Constitution of
India.
23. We may now refer to certain other provisions of Constitution,
G Entry 77, Union List (List I) of VII Schedule reads as follows:
“77. Constitution, organisation, jurisdiction and powers of the
Supreme Court (including contempt of such Court), and the fees
7
(1991) 4 SCC 406
8
H (1995) 2 SCC 584
RE : VIJAY KURLE & ORS. 1035
[DEEPAK GUPTA, J.]
taken therein; persons entitled to practise before the Supreme A
Court.”
Entry 14, Concurrent List (List III of VII Schedule) reads as
follows :
“14. Contempt of court, but not including contempt of the Supreme
Court.” B
In exercise of the aforesaid powers the Contempt of Courts Act,
1971 was enacted by Parliament. Section 15 deals with cognizance of
criminal contempt and the opening portion of Section 15 clearly provides
that the Supreme Court or the High Courts may take action (i) suo motu
(ii) on a motion moved by the Advocate General in case of High Court C
or Attorney General/Solicitor General in the case of Supreme Court and
(iii) on a petition by any other person with the consent in writing of the
Advocate General/Attorney General/Solicitor General as the case may
be. Section 17 lays down the procedure to be followed when action is
taken on a motion moved by the Advocate General/Attorney General/ D
Solicitor General or on the basis of their consent and Section 17(2) does
not deal with suo motu contempt petitions. Section 17(2)(a) of the
Contempt of Courts Act will not apply to suo motu petitions because
that deals with the proceedings moved on a motion and not suo motu
proceedings. Section 17(2)(b) deals with contempt initiated on a reference
made by the subordinate court. It is only in these cases that the notice is E
required to be issued along with a copy of the motion. As far as suo
motu petitions are concerned, in these cases the only requirement of
Form-I which has been framed in pursuance of Rule 6 of the Rules of
this Court is that the brief nature of the contempt has to be stated therein.
24. The correctness of the judgment in Vinay Chandra Mishra’s F
case (supra) was considered by a Constitution Bench of this Court in
Supreme Court Bar Association v. Union of India9. We shall be
referring to certain portions of that judgment in detail. That being a
Constitution Bench judgment, is binding and all other judgments which
may have taken a view to the contrary cannot be said to be correct. G
Before we deal with the judgment itself, it would be appropriate to refer
to certain provisions of the Contempt of Courts Act, 1971. Section 2 is
the definition clause defining “contempt of court”, “civil contempt”,
“criminal contempt” and “High Court”. Sections 3 to 5 deal with
9
(1998) 4 SCC 409 H
1036 SUPREME COURT REPORTS [2020] 7 S.C.R.
A innocent publication, fair and accurate reporting of judicial proceedings
and fair criticism of judicial act, which do not amount to contempt. Sections
10 and 11 deal with the powers of the High Court to punish for contempt.
Section 12(2) provides that no court shall impose a sentence in excess
of that specified in sub-section (1) of Section 12. Section 13 provides
that no court should impose a sentence under the Act for contempt unless
B
it is satisfied that the contempt is of such a nature that it substantially
interferes or tends to substantially interfere with the due course of justice.
It also provides that truth can be permitted to be raised as a valid defence
if the court is satisfied that the defence has been raised in the public
interest and is a bona fide defence. Section 14 deals with the powers of
C the Supreme Court or the High Courts to deal with contempt in the face
of the Court. We have already dealt with Section 15 which deals with
cognizance of the criminal contempt other than contempt in the face of
the Court. Section 17 lays down the procedure after cognizance. It is in
the background of this Act that we have to read and analyse the judgment
of the Constitution Bench.
D
25. The Constitution Bench referred to the provisions of Article
129 of the Constitution of India and also Entry 77 of List I of Seventh
Schedule and Entry 14 of List III of the Seventh Schedule and, thereafter,
held as follows:-
E “18. The language of Entry 77 of List I and Entry 14 of List III of
the Seventh Schedule demonstrates that the legislative power of
Parliament and of the State Legislature extends to legislate with
respect to matters connected with contempt of court by the
Supreme Court or the High Court, subject however, to the
qualification that such legislation cannot denude, abrogate or nullify,
F the power of the Supreme Court to punish for contempt under
Article 129 or vest that power in some other court.”
(emphasis supplied)
26. This Court referring to Article 142 of the Constitution held as
G follows:-
“21. It is, thus, seen that the power of this Court in respect of
investigation or punishment of any contempt including contempt
of itself, is expressly made “subject to the provisions of any law
made in this behalf by Parliament” by Article 142(2). However,
the power to punish for contempt being inherent in a court of
H
RE : VIJAY KURLE & ORS. 1037
[DEEPAK GUPTA, J.]
record, it follows that no act of Parliament can take away that A
inherent jurisdiction of the court of record to punish for contempt
and Parliament’s power of legislation on the subject cannot,
therefore, be so exercised as to stultify the status and dignity of
the Supreme Court and/or the High Courts, though such a legislation
may serve as a guide for the determination of the nature of
B
punishment which this Court may impose in the case of established
contempt. Parliament has not enacted any law dealing with the
powers of the Supreme Court with regard to investigation and
punishment of contempt of itself, (we shall refer to Section 15 of
the Contempt of Courts Act, 1971, later on) and this Court,
therefore, exercises the power to investigate and punish for C
contempt of itself by virtue of the powers vested in it under Articles
129 and 142(2) of the Constitution of India.”
27. This Court then made reference to the provision of the
Contempt of Courts Act, 1926, the Contempt of Courts Act, 1952 and
the Contempt of Courts Act, 1971 and thereafter held as follows:- D
“29. Section 10 of the 1971 Act like Section 2 of the 1926 Act and
Section 4 of the 1952 Act recognises the power which a High
Court already possesses as a court of record for punishing for
contempt of itself, which jurisdiction has now the sanction of the
Constitution also by virtue of Article 215. The Act, however, does E
not deal with the powers of the Supreme Court to try or punish a
contemner for committing contempt of the Supreme Court or the
courts subordinate to it and the constitutional provision contained
in Articles 142(2) and 129 of the Constitution alone deal with the
subject.”
F
28. It would also be pertinent to refer to the following observations
of the Constitution Bench:-
“38. As already noticed, Parliament by virtue of Entry 77 List I is
competent to enact a law relating to the powers of the Supreme
Court with regard to contempt of itself and such a law may G
prescribe the nature of punishment which may be imposed on a
contemner by virtue of the provisions of Article 129 read with
Article 142(2). Since, no such law has been enacted by Parliament,
the nature of punishment prescribed under the Contempt of
Courts Act, 1971 may act as a guide for the Supreme Court but
the extent of punishment as prescribed under that Act can apply H
1038 SUPREME COURT REPORTS [2020] 7 S.C.R.
A only to the High Courts, because the 1971 Act ipso facto does not
deal with the contempt jurisdiction of the Supreme Court, except
that Section 15 of the Act prescribes procedural mode for taking
cognizance of criminal contempt by the Supreme Court also.
Section 15, however, is not a substantive provision conferring
contempt jurisdiction. The judgment in Sukhdev Singh case (AIR
B
1954 SC 186 : 1954 SCR 454) as regards the extent of “maximum
punishment” which can be imposed upon a contemner must,
therefore, be construed as dealing with the powers of the High
Courts only and not of this Court in that behalf. We are, therefore,
doubtful of the validity of the argument of the learned Solicitor
C General that the extent of punishment which the Supreme Court
can impose in exercise of its inherent powers to punish for contempt
of itself and/or of subordinate courts can also be only to the extent
prescribed under the Contempt of Courts Act, 1971. We, however,
do not express any final opinion on that question since that issue,
strictly speaking, does not arise for our decision in this case. The
D
question regarding the restriction or limitation on the extent of
punishment, which this Court may award while exercising its
contempt jurisdiction may be decided in a proper case, when so
raised.”
xxx xxx xxx
E
“40…Article 129 cannot take over the jurisdiction of the
Disciplinary Committee of the Bar Council of the State or the Bar
Council of India to punish an advocate by suspending his licence,
which punishment can only be imposed after a finding of
“professional misconduct” is recorded in the manner prescribed
F under the Advocates Act and the Rules framed thereunder.”
xxx xxx xxx
“43. The power of the Supreme Court to punish for contempt of
court, though quite wide, is yet limited and cannot be expanded to
G include the power to determine whether an advocate is also guilty
of “professional misconduct” in a summary manner, giving a go-
by to the procedure prescribed under the Advocates Act. The
power to do complete justice under Article 142 is in a way,
corrective power, which gives preference to equity over law but
it cannot be used to deprive a professional lawyer of the due
H process contained in the Advocates Act, 1961 by suspending his
RE : VIJAY KURLE & ORS. 1039
[DEEPAK GUPTA, J.]
licence to practice in a summary manner while dealing with a A
case of contempt of court.”
xxx xxx xxx
“57. In a given case, an advocate found guilty of committing
contempt of court may also be guilty of committing “professional
misconduct”, depending upon the gravity or nature of his B
contumacious conduct, but the two jurisdictions are separate and
distinct and exercisable by different forums by following separate
and distinct procedures. The power to punish an advocate by
suspending his licence or by removal of his name from the roll of
the State Bar Council for proven professional misconduct vests C
exclusively in the statutory authorities created under the
Advocates Act, 1961, while the jurisdiction to punish him for
committing contempt of court vests exclusively in the courts.”
29. A careful analysis of the Constitution Bench decision leaves
no manner of doubt that Section 15 of the Act is not a substantive provision D
conferring contempt jurisdiction. The Constitution Bench finally left the
question as to whether the maximum sentence prescribed by the Act
binds the Supreme Court open. The observations made in Para 38 referred
to above clearly indicate that the Constitution Bench was of the view
that the punishment prescribed in the Act could only be a guideline and
nothing more. Certain observations made in this judgment that the Court E
exceeded its jurisdiction in Vinay Chandra Mishra’s case (supra) by
taking away the right of practice for a period of 3 years have to be read
in the context that the Apex Court held that Article 129 cannot take over
the jurisdiction of the Bar Council of the State or the Bar Council of
India to punish an advocate. These observations, in our opinion have to F
be read with the other observations quoted hereinabove which clearly
show that the Constitution Bench held that “Parliament has not enacted
any law dealing with the powers of the Supreme Court with regard
to investigation and punishment of contempt of itself”. The Court
also held that Section 15 is not a substantive provision conferring contempt
jurisdiction and, therefore, is only a procedural section especially in so G
far as suo moto contempts are concerned. It is thus clear that the powers
of the Supreme Court to punish for contempt committed of itself is a
power not subject to the provisions of the Act. Therefore, the only
requirement is to follow a procedure which is just, fair and in accordance
with the rules framed by this Court. H
1040 SUPREME COURT REPORTS [2020] 7 S.C.R.
A 30. As far as the observations made in the case of Pallav Sheth
v. Custodian & Ors.10 are concerned, this Court in that case was only
dealing with the question whether contempt can be initiated after the
limitation prescribed in the Contempt of Courts Act has expired and the
observations made therein have to be read in that context only. Relevant
portion of Para 30 of the Pallav Seth’s case (supra) reads as follows:
B
“30. There can be no doubt that both this Court and High Courts
are Courts of Records and the Constitution has given them the
powers to punish for contempt. The decisions of this Court clearly
show that this power cannot be abrogated or stultified. But if the
power under Article 129 and Article 215 is absolute can there be
C any legislation indicating the manner and to the extent that the
power can be exercised? If there is any provision of the law which
stultifies or abrogates the power under Article 129 and/or Article
215 there can be little doubt that such law should not be regarded
as having been validly enacted. It, however, appears to us that
D providing for the quantum of punishment ow what may or may
not be regarded as acts of contempt or even providing for a period
of limitation for initiating proceedings for contempt cannot be taken
to be a provision which abrogates or stultifies the contempt
jurisdiction under Article 129 or Article 215 of the Constitution.”
E The aforesaid finding clearly indicates that the Court held that
any law which stultifies or abrogates the power of the Supreme Court
under Article 129 of the Constitution or of the High Courts under Article
215 of the Constitution, could not be said to be validly enacted. It however,
went on to hold that providing the quantum of punishment or a period of
limitation would not mean that the powers of the Court under Article 129
F have been stultified or abrogated. We are not going into the correctness
or otherwise of this judgment but it is clear that this judgment only dealt
with the issue whether the Parliament could fix a period of limitation to
initiate the proceedings under the Act. Without commenting one way or
the other on Pallav Seth’s case (supra) it is clear that the same has not
G dealt with the powers of this Court to issue suo motu notice of contempt.
31. In view of the above discussion we are clearly of the view
that the powers of the Supreme Court to initiate contempt are not in any
manner limited by the provisions of the Act. This Court is vested with
the constitutional powers to deal with the contempt. Section 15 is not the
10
H 2001 (7) SCC 549
RE : VIJAY KURLE & ORS. 1041
[DEEPAK GUPTA, J.]
source of the power to issue notice for contempt. It only provides the A
procedure in which such contempt is to be initiated and this procedure
provides that there are three ways of initiating a contempt – (i) suo
motu (ii) on the motion by the Advocate General/Attorney General/
Solicitor General and (iii) on the basis of a petition filed by any other
person with the consent in writing of the Advocate General/Attorney
B
General/Solicitor General. As far as suo motu petitions are concerned,
there is no requirement for taking consent of anybody because the Court
is exercising its inherent powers to issue notice for contempt. This is not
only clear from the provisions of the Act but also clear from the Rules
laid down by this Court.
Objections as to issuance of notice C
32. The alleged contemnors have filed applications for discharge
of notices issued to them. Vide our order dated 09.12.2019 we had made
it clear that we are dealing with both the applications and the main petition
together. The main ground for discharge is that notice sent was not in
accordance with the provisions of the Contempt of Courts Act. This D
Court, as mentioned above, has its own Rules and Form I lays down the
manner in which notice is to be issued. The same is as follows:
“FORM I
NOTICE TO A PERSON CHARGED WITH CONTEMPT
OF COURT E
(See rule 6)
IN THE SUPREME COURT OF INDIA
(Original Jurisdiction)
Whereas your attendance is necessary to answer a charge F
of Contempt of Court by (here briefly state nature of the contempt).
You are hereby required to appear in person (or by Advocate
if the Court has so ordered) before this Court at New Delhi on
the ………………day of…………….20…at 10.30 o’clock in the
forenoon. G
*
You shall attend the Court in person on the…………day
of ………….20……, and shall continue to attend the Court on all
days thereafter to which the case against you stands adjourned
and until final orders are passed on the charge against you.
H
1042 SUPREME COURT REPORTS [2020] 7 S.C.R.
A Herein fail not.
Dated this …………. day of…………20….
(SEAL)
REGISTRAR
B *To be omitted where the person charged is allowed or ordered
to appear by Advocate.”
The only requirement of the Rules and the Form is that the brief
nature of the contempt is to be stated in the Form. There is no requirement
of giving all the documents with the Form. A perusal of the order whereby
C contempt proceedings were initiated clearly shows that the grounds for
initiating contempt were reflected in the order itself. This order was
admittedly sent to the alleged contemnors. Therefore, in our opinion, the
notice was strictly in accordance with Form-1, which only requires that
the notice should briefly state the nature of the contempt. Once the
D order was attached to the notice that became part and parcel of the
notice itself. In any event, non-supply of any document would only be an
irregularity and not an illegality going to the root of the matter. The only
documents which are the basis for issuing notice of contempt are the
complaints sent by Shri Vijay Kurle and Shri Rashid Khan Pathan which
were annexed to the letter of the Bombay Bar Association and Bombay
E Incorporated Law Society. The letters of the Bombay Bar Association
and Bombay Incorporated Law Society along with all the annexures
attached to the said letter have been supplied to the alleged contemnors
and they were permitted to file additional replies after receiving all these
documents. As mentioned above, this Court had clarified that the action
F against alleged contemnors is being restricted to the allegations made in
the two complaints by Shri Vijay Kurle and Shri Rashid Khan Pathan of
which they are admittedly the authors. Since this Court has not relied
upon any of the other documents, we do not see how any prejudice has
been caused to the alleged contemnors by the non-supply of the
documents along with the notice. As per the Rules of this Court, the
G notice was only to briefly state nature of the contempt and in the order
itself reference has been made to the complaints of Shri Vijay Kurle and
Shri Rashid Khan Pathan. We accordingly see no merit in the argument
of the alleged contemnors that the notice was not in consonance with
the Rules of this Court or in consonance with the principles of natural
justice or fair procedure. Accordingly, we reject the contention and hold
H
RE : VIJAY KURLE & ORS. 1043
[DEEPAK GUPTA, J.]
that the notice was a legal and valid notice. Consequently, the applications A
for discharge of notice are also dismissed.
Whether these proceedings can be termed suo motu?
33. The next contention of the alleged contemnors is that the
proceedings in the present case are not suo motu proceedings and,
therefore, should not have been entertained without the consent of the B
Attorney General or Solicitor General. The alleged contemnors have
placed strong reliance on the judgment of this Court in the case of Biman
Basu v. Kallol Guha Thakurta & Another.11 The issue in that case
was whether the High Court had issued notice of contempt suo motu.
In our view, that judgment has no applicability here. The facts of that C
case were that a contempt petition was filed by the respondents (in the
Supreme Court) alleging that the appellant (in the Supreme Court) had
made deliberate and wilful derogatory, defamatory and filthy statements
against a Judge of the Calcutta High Court. The Division Bench before
whom the matter was placed passed the following order:
D
“7. Heard.
After hearing Mr. Ali, learned counsel moving this petition
and perusing the issue of Bartaman dated 5-10-2003, we are of
the view that a rule be issued. Rule is made returnable on
7-11-2003. E
This Court, however, makes it clear that the records of this
case may be placed before the Hon’ble the Chief Justice for
assignment of this rule for hearing before any Bench that the
Hon’ble the Chief Justice may think fit and proper.”
The main issue which arose before this Court was whether the F
contempt proceedings were initiated against the appellant therein suo
motu by the High Court or by the respondents. Keeping in view the
language of the order passed in the case it was held that this was not a
case where the Court had taken suo motu action and therefore relying
upon the judgments of this Court in the case of P.N. Duda (supra) and
G
in Bal Thackrey v. Harish Pimpalkhute and Ors.12 it was held that
the contempt petition could not have been filed without the consent of
the Advocate General. The Court further held that from the record it
11
(2010) 8 SCC 673
12
2005 (1) SCC 254
H
1044 SUPREME COURT REPORTS [2020] 7 S.C.R.
A was apparent that the respondent was always shown as the petitioner in
the contempt petition and, therefore, there was nothing which indicated
that the proceedings had been initiated suo motu.
34. As far as the present case is concerned, the order passed by
this Court clearly shows that this Court after taking note of the letter
B sent by the President of the Bombay Bar Association and the President
of the Bombay Incorporated Law Society, the annexures attached to
this letter and after specifically noting the prayers made in the complaints
of Shri Vijay Kurle and Shri Rashid Khan Pathan along with the allegations
made in both the complaints was of the view that the allegations levelled
against the Members of the Bench were scandalous in nature and
C therefore, notice was issued to the alleged contemnors and against Shri
Nedumpara who has since been discharged. The alleged contemnors
are basically urging that the order does not use the word “suo motu”. In
our view, that would not make any difference. The relevant portion of
the order dated 27.03.2019 reads as follows:
D “Given the two complaints filed, it is clear that scandalous
allegations have been made against the members of this Bench.
We, therefore, issue notice of contempt to (1) Shri Vijay Kurle;
(2) Shri Rashid Khan Pathan; (3) Shri Nilesh Ojha and (4) Shri
Mathews Nedumpara to explain as to why they should not be
E punished for criminal contempt of the Supreme Court of India,
returnable within two weeks from today.”
When we read the aforesaid order as a whole, it is more than
obvious that the Court itself took cognizance of the complaints and the
documents thereto as well as the allegations levelled therein.
F 35. Contempt is basically a matter between the Court and the
contemnor. Any person can inform the Court of the contempt committed.
If he is to be arrayed as a party then the contempt will be in his name but
when the Court does not array him as a party, the Court can on the basis
of the information itself take suo motu notice of the contempt. In the
present case, the Court on the basis of the information itself took suo
G motu note of the contempt and the matter was then placed before Hon’ble
the Chief Justice for listing it before the appropriate Bench. The matter
has been listed as a suo motu contempt petition right from the beginning
and dealt with as such.
36. In Biman Basu’s case (supra) the Court after referring to
H earlier decisions of this Court held as follows:
RE : VIJAY KURLE & ORS. 1045
[DEEPAK GUPTA, J.]
“25. It is true that any person may move the High Court for A
initiating proceedings for criminal contempt by placing the facts
constituting the commission of criminal contempt to the notice of
the Court. But once those facts are placed before the Court, it
becomes a matter between the Court and the contemner. But
such person filing an application or petition does not become a
B
complainant or petitioner in the proceeding. His duty ends with
the facts being placed before the Court. The Court may in
appropriate cases in its discretion require the private party or litigant
moving the Court to render assistance during the course of the
proceedings...”
xxx xxx xxx C
“28. In the case in hand, it is evident from the record, the
respondents were continued to be shown as the petitioners in the
contempt case before the High Court and participated throughout
as if they were prosecuting the appellant. There is no order
reflecting that the Court having taken note of the information made D
before it, initiated suo motu proceedings on the basis of such
information furnished and required the respondents only to assist
the Court till the disposal of the matter. On the contrary, the
respondents are shown as the petitioners in the contempt case
before the High Court. It is thus clear, it is the respondents who E
initiated the proceedings and continued the same but without the
written consent of the Advocate General as is required in law.
The proceedings, therefore, were clearly not maintainable.”
37. As pointed out above, in the present case the Bombay Bar
Association and the Bombay Incorporated Law Society have never been F
shown as petitioners. The letter sent by the President of the Bombay
Bar Association and the President of the Bombay Incorporated Law
Society is not addressed to this Court to initiate contempt proceedings.
The letters were addressed to the President of India, the Chief Justice
of India and the Chief Justice of the High Court of Bombay and the
prayer made therein was that the complaints by the Indian Bar Association G
and Human Rights Security Council should be rejected. There is no
prayer for initiating contempt proceedings. These letters were placed in
the office of the Judges of this Court and after taking note of the
averments made therein they decided to issue notice of contempt. This
H
1046 SUPREME COURT REPORTS [2020] 7 S.C.R.
A is nothing but a suo motu action on reading the complaints and the letter
of the President of the Bombay Bar Association and the President of
the Bombay Incorporated Law Society and hence this cannot be termed
to be a contempt petition requiring the consent of the Attorney General.
Judge in their own Cause
B
38. We shall now deal with the arguments of the alleged
contemnors that the Bench could not have issued the notice without the
matter being placed before it and further that this amounted to them
acting as judges in their own cause. A number of judgments have been
cited in this regard but we need not refer to all of them. Strong reliance
C is placed by the alleged contemnors on the judgment of Justice
Ranganathan in P.N. Duda’s case (supra) that the practice being
followed by the Delhi High Court should be followed in this Court also.
We are unable to accept this contention and find no merit in the same.
As already observed above, those observations were in the nature of
obiter and the said observations cannot override the statutory rules.
D
39. It is true that the Chief Justice is the master of the roster and
in normal course a matter can be listed before a Bench only on the basis
of orders issued by the Chief Justice. However, here the situation is
totally different. The Bench was already dealing with Suo Motu Contempt
Petition (Crl.) No. 1 of 2019. The letter of the President of the Bombay
E
Bar Association and the President of the Bombay Incorporated Law
Society was placed before the Bench. Along with this letter the complaints
filed by Shri Vijay Kurle and Shri Rashid Khan Pathan were annexed.
The Bench took suo motu notice of the allegations made in these two
complaints and directed that contempt proceedings be initiated.
F Thereafter, in accordance with the principles of natural justice and also
the principle that the Chief Justice is the master of the roster the Bench
directed that the matter may be listed before the Chief Justice for placing
it before the appropriate Bench. The Chief Justice, though no doubt,
master of the roster, is first amongst the equals and every Judge of the
Supreme Court is as much part of this Court as Hon’ble the Chief Justice.
G
The Judges of this Court can exercise their powers under Article 129 of
the Constitution which is a constitutional power untrammelled by any
rules or convention to the contrary. Even so, the Bench in deference to
the principle of master of the roster, after taking cognizance of the
scandalous allegations made in the complaints of the alleged contemnors
H and issuing notice to them directed that the matter be placed before
RE : VIJAY KURLE & ORS. 1047
[DEEPAK GUPTA, J.]
Hon’ble the Chief Justice for listing before an appropriate Bench. This, A
in our view, is the proper procedure. If an article, letter or any writing or
even something visual circulating in electronic, print or social media or in
any other forum is brought to the notice of any Judge of this Court which
prima facie shows that the allegation is contemptuous or scandalises
the court then that Judge can definitely issue notice and thereafter place
B
it before Hon’ble the Chief Justice for listing it before an appropriate
Bench.
40. The alleged contemnors have relied upon the judgment in
Divine Retreat Centre v. State of Kerala & Others.13 wherein it was
observed that individual writing should be placed before the Chief Justice
C
as to the proposed action on such petitions. It was held:
“71. …The individual letters, if any, addressed to a particular judge
are required to be placed before the Chief Justice for consideration
as to the proposed action on such petitions. Each Judge cannot
decide for himself as to what communication should be entertained
D
for setting the law in motion be it in PIL or in any jurisdiction.”
At the outset, we may note that these observations were made in
the context of public interest litigations and not for contempt petitions
and the jurisdiction of this Court to punish for contempt of itself is a very
wide jurisdiction. Furthermore, it is not as if the letter were addressed to
E
the Members of the Bench. As observed above, the letter sent by the
President of the Bombay Bar Association and the President of the
Bombay Incorporated Law Society was addressed to the President of
India, the Chief Justice of this Court, and the Chief Justice of the High
Court of Bombay. Presumably, it must have been the Office of the Chief
Justice which sent the letters to the Bench. In any event, that will not F
have any bearing on this case. We are clearly of the view that the Bench
was fully justified in taking note of the letter sent by the Bombay Bar
Association and the President of the Bombay Incorporated Law Society
and the documents annexed thereto which included the complaints sent
by Shri Vijay Kurle and Shri Rashid Khan Pathan. After issuing notice
G
the bench directed that the matter be placed before Hon’ble the Chief
Justice for placing before the appropriate bench. This is valid and proper
procedure and the bench did not act as judge in their own cause. Only
notice was issued and thereafter the matter was assigned to this bench.
13
(2008) 3 SCC 542 H
1048 SUPREME COURT REPORTS [2020] 7 S.C.R.
A Source of Information
41. Another argument raised is that the Bench should have
disclosed from where it got the information. The alleged contemnors
have cited a number of decisions in this regard. Dealing with the issue
of disclosure of source of information in C. K. Daphtary’s case (supra)
B this Court held as follows:-
“79….The first respondent said that the source of information
had not been disclosed. Para 2 of the petition refers to proceedings
in this Court and it was not necessary to have disclosed any further
source of information. As far as paras 3 and 4 are concerned, the
C first respondent admits that he approached members of Parliament
to file a motion of impeachment against Mr. Justice Shah. Calling
this a “campaign” is only to describe in a word his activities.
Whether it should be strictly called a campaign is beside the point.
The essential facts mentioned in Para 5 are admitted by the first
respondent. Therefore the fact that the source of information was
D not disclosed does not debar us from taking the facts into
consideration. The last sentence of Para 5 viz., “The said pamphlet
was, as the petitioners believe, sold or offered for sale to the
public by Respondent No. 3” is a matter of belief. Para 6 contains
inferences and submissions in respect of which there was no
E question of disclosing the source of information. Para 7 contains
extracts from the booklet or the pamphlet which was attached as
an annexure. In view of the document having been attached it
was not necessary that the source of information regarding Para
7 should have been disclosed. The allegations in Para 9 of the
petition are supported by an affidavit of Mr. B.P. Singh, Advocate,
F who has verified that the contents in his affidavit are true to his
knowledge….”
42. We fail to understand how Shri Vijay Kurle can urge that the
source of information should be disclosed. His complaint is addressed
amongst all others to Judges of this Court which obviously includes the
G two Judges who are members of the Bench.
43. In the instant case, the disclosure of the information is made
in the order itself where it is clearly recorded that the action has been
taken on the basis of the letter sent by the President of the Bombay Bar
Association and the President of the Bombay Incorporated Law Society
H
RE : VIJAY KURLE & ORS. 1049
[DEEPAK GUPTA, J.]
to the President of India and the Chief Justice of India in response to the A
complaints made by the alleged contemnors. The complaints of Shri
Vijay Kurle and Shri Rashid Khan Pathan were also attached with the
letters and after taking note not only of the letter of the President of the
Bombay Bar Association and the President of the Bombay Incorporated
Law Society but also the prayer clauses of both the complaints sent by
B
the alleged contemnors and the scandalous allegations made in the
complaints, the notice was issued. The source of information is the letter
sent by the Bombay Bar Association and the President of the Bombay
Incorporated Law Society, as is apparent from the order initiating
contempt proceedings. Therefore, we find no merit in this plea.
Freedom to criticise C
44. Before dealing with these allegations it would be apposite to
set out the law with regard to fair criticism of the judgments of the
Court. There can be no manner of doubt that every citizen is entitled to
criticise the judgments of this Court and Article 19 of the Constitution
which guarantees the right of free speech to every citizen of the country D
must be given the exalted status which it deserves. However, at the
same time, we must remember that clause (2) of Article 19 of the
Constitution also makes it clear that the right to freedom of speech is
subject to existing laws for imposing reasonable restrictions as far as
such law relates to contempt of Court. This right of freedom of speech E
is made subject to the laws of contempt which would not only include
Contempt of Courts Act but also the powers of the Supreme Court to
punish for contempt under Article 129 and 142(2) of the Constitution.
Similar powers are vested with the High Courts.
45. The purpose of having a law of contempt is not to prevent fair F
criticism but to ensure that the respect and confidence which the people
of this country repose in the judicial system is not undermined in any
manner whatsoever. If the confidence of the citizenry in the institution
of justice is shattered then not only the judiciary, but democracy itself
will be under threat. Contempt powers have been very sparingly used
by the Courts and rightly so. The shoulders of this Court are broad enough G
to withstand criticism, even criticism which may transcend the parameters
of fair criticism. However, if the criticism is made in a concerted manner
to lower the majesty of the institution of the Courts and with a view to
tarnish the image, not only of the Judges, but also the Courts, then if
such attempts are not checked the results will be disastrous. Section 5 H
1050 SUPREME COURT REPORTS [2020] 7 S.C.R.
A of the Contempt of Courts Act itself provides that publishing of any fair
comment on the merits of any case which has been heard and finally
decided does not amount to contempt.
46. In Dr. D.C. Saxena v. Hon’ble the Chief Justice of India14
after referring to a large number of judgments to which we need not
B refer, this Court held that though freedom of speech is an essential part
of democracy, it is equally necessary for society to regulate such freedom
of speech or expression in terms of the exceptions to Article 19 of the
Constitution. Bonafide criticism of any institution including the judiciary
is always welcome. Healthy and constructive criticism of the judgments
cannot amount to contempt of Court. However, if the allegations levelled
C go beyond the ambit of criticism and scandalise the Court then there can
be no manner of doubt that such utterances or written words would
amount to contempt of Court. This Court In Re: Arundhati Roy15 while
dealing with Section 2 of the Act held as follows:
“28. As already held, fair criticism of the conduct of a Judge, the
D institution of the judiciary and its functioning may not amount to
contempt if it is made in good faith and in public interest. To
ascertain the good faith and the public interest, the courts have to
see all the surrounding circumstances including the person
responsible for comments, his knowledge in the field regarding
E which the comments are made and the intended purpose sought
to be achieved. All citizens cannot be permitted to comment upon
the conduct of the courts in the name of fair criticism which, if not
checked, would destroy the institution itself…”
47. The alleged contemnors have relied on certain observations
F made in the case of P.N. Duda (supra). That was a case where a former
Judge of the High Court, who was Minister for Law, Justice and Company
Affairs in the Central Government, criticised the functioning of the
Supreme Court and one of the principal criticisms of this Court was that
it was comprised of Judges belonging to the upper echelons of society
and therefore, the Court was more sympathetic to industrialists and
G representatives of elitist culture etc. The Court while discharging the
notice held that the speech of the Minister must be read in proper
perspective. However, this Court observed that the Minister would have
been better advised to avoid certain portions of the speech and held that
14
(1996) 5 SCC 216
H 15
(2002) 3 SCC 343
RE : VIJAY KURLE & ORS. 1051
[DEEPAK GUPTA, J.]
the speech did not amount to interference with the administration of A
justice or bringing the administration of justice into disrepute. Dealing
with the aforesaid observations in Dr. D.C. Saxena’s case (supra) this
Court held as follows:
“34. In P.N. Duda v. P. Shiv Shankar [(1988) 3 SCC 167 : 1988
SCC (Cri) 589 : AIR 1988 SC 1208] this Court had held that B
administration of justice and judges are open to public criticism
and public scrutiny. Judges have their accountability to the society
and their accountability must be judged by the conscience and
oath to their office, i.e., to defend and uphold the Constitution and
the laws without fear and favour. Thus the judges must do, in the
light given to them to determine, what is right. Any criticism about C
the judicial system or the judges which hampers the administration
of justice or which erodes the faith in the objective approach of
the judges and brings administration of justice to ridicule must be
prevented. The contempt of court proceedings arise out of that
attempt. Judgments can be criticised. Motives to the judges need D
not be attributed. It brings the administration of justice into disrepute.
Faith in the administration of justice is one of the pillars on which
democratic institution functions and sustains. In the free market-
place of ideas criticism about the judicial system or judges should
be welcome so long as such criticism does not impair or hamper
the administration of justice. This is how the courts should exercise E
the powers vested in them and judges to punish a person for an
alleged contempt by taking notice of the contempt suo motu or at
the behest of the litigant or a lawyer. In that case the speech of
the Law Minister in a Seminar organised by the Bar Council and
the offending portions therein were held not contemptuous and F
punishable under the Act. In a democracy judges and courts alike
are, therefore, subject to criticism and if reasonable argument or
criticism in respectful language and tempered with moderation is
offered against any judicial act as contrary to law or public good,
no court would treat criticism as a contempt of court.”
G
48. There can be no manner of doubt that any citizen of the country
can criticise the judgments delivered by any Court including this Court.
However, no party has the right to attribute motives to a Judge or to
question the bona fides of the Judge or to raise questions with regard to
the competence of the Judge. Judges are part and parcel of the justice
H
1052 SUPREME COURT REPORTS [2020] 7 S.C.R.
A delivery system. By and large Judges are reluctant to take action under
contempt laws when a personal attack is made on them. However, when
there is a concerted attack by members of the Bar who profess to be
the members of an organization having a large following, then the Court
cannot shut its eyes to the slanderous and scandalous allegations made.
If such allegations which have not only been communicated to the
B
President of India and the Chief Justice of India, but also widely circulated
on social media are permitted to remain unchallenged then the public
will lose faith not only in those particular Judges but also in the entire
justice delivery system and this definitely affects the majesty of law.
49. Though the alleged contemnors claim that they are not
C expressing any solidarity with Shri Mathews Nedumpara nor do they
have anything personal against Justice R.F. Nariman, the entire reading
of the complaints shows a totally different picture. When we read both
the complaints together it is obvious that the alleged contemnors are
fighting a proxy battle for Shri Nedumpara. They are raking up certain
D issues which could have been raised only by Shri Nedumpara and not by
the alleged contemnors.
50. Both the complaints are ex-facie contemptuous. Highly
scurrilous and scandalous allegations have been levelled against the two
judges of this Court. In our view, the entire contents of the complaints
E amount to contempt. Since both the complaints run into more than 250
pages it is not possible to quote the entire complaints and we are dealing
with some of the more scandalous allegations levelled in the said
complaints. We have grouped certain allegations together.
1st Complaint dt.20.03.2019 by Shri Vijay Kurle
F 51. On pages 49-51 of the 1st complaint, the following allegations
have been made:
“III) CHARGE # :- PERSONAL BIAS PROCEEDING
VITIATED.
The another illegality is regarding conflict of interest & violation
G
of law laid down by Hon’ble Supreme Court in the case of State
of Punjab Vs. Davinder Pal Singh Bhullar & Ors. (2011) 14
SCC 770.
That since last 2 years, Advocate Nedumpatra is posting
articles against Advocate Fali S. Nariman. He also filed Writ
H
RE : VIJAY KURLE & ORS. 1053
[DEEPAK GUPTA, J.]
Petition before Delhi High Court being W.P.(C) No.2019 of 2019, A
where he raised the issue of Advocate Fali Nariman practising in
Supreme Court where his son Rohington Fali Nariman is a Judge.
Under these circumstances having direct conflict of interest and
having prejudice with Advocate Nedumpara, Justice Rohington
Fali Nariman was disqualified to hear the case and he should B
have recused himself from the cases where Advocate Nedumpara
is appearing.
xxx xxx xxx
But instead of maintaining dignity & sobriety of the Supreme Court
the Respondent Judge Rohington Fali Nariman heard the case C
and brought the dignity & majesty of Hon’ble Supreme Court into
disrepute.”
The alleged contemnors have alleged that Shri Nedumpara was
posting articles against Shri F. S. Nariman, a senior advocate who happens
to be the father of Justice R. F. Nariman. It is alleged that therefore D
there was a direct conflict of interest and Justice R.F Nariman was
disqualified from hearing the case involving Shri Nedumpara. We fail to
see how there is any conflict of interest. Shri F.S. Nariman, Senior
Advocate is a doyen of the Indian Bar and a legal luminary in his own
right. Justice R.F. Nariman is his son and a Judge of this Court. That E
however would not create any conflict of interest between Justice
Nariman and Shri Nedumpara because Shri F.S. Nariman and Justice
R. F. Nariman are two different entities. The purported article has not
been placed on record. In any event, it was Shri Nedumpara who could
have raised this defence before the Bench and he, in fact, has filed an
affidavit of apology accepting that he has committed contempt. The F
alleged contemnors have unnecessarily and without any reason questioned
the impartiality of Judges of this Court.
52. As far as the allegations made at Page 55 of the first complaint
are concerned, we find that the Shri Vijay Kurle could have said what
he wanted to say in the first paragraph quoted hereinabove but what is G
totally unacceptable is the second part of the paragraph where Shri Vijay
Kurle assumes the role of a judge and says that “The only irresistible
conclusion that can be drawn is that there were no malafides on the
part of Advocate Nedumpara and if it were put in notice calling
explanation in open Court then would have exposed Justice Nariman
H
1054 SUPREME COURT REPORTS [2020] 7 S.C.R.
A in front of advocates and public and that’s why a very strange and
different method is adopted by Justice Nariman by pronouncing
conviction of advocate.” This shows that he is fighting a proxy battle
for Mr. Nedumpara. What is even more objectionable is the language
used thereafter that if Shri Nedumpara was put to notice then it would
have exposed Justice Nariman in front of advocates and public. This
B
allegation also is a scandalous allegation. We are not looking into the
merits of the decisions. We cannot comment on the merits of the decisions
of the Bench headed by Justice Nariman but we must note that after
holding Shri Nedumpara guilty he was heard on the point of sentence
and thereafter he filed an affidavit which reads as follows:
C “AFFIDAVIT
I, Mathews J. Nedumpara, Advocate, aged 60 years, Indian
Inhabitant, residing at Harbour Heights, “W” Wing, 12-F, 12th
Floor, Sassoon Docks, Colaba, Mumbai-400 005, now in Delhi, do
hereby swear and state as follows:-
D
1. A Bench of this Hon’ble Court comprising Hon’ble Shri Justice
Rohinton F. Nariman and Hon’ble Shri Justice Vineet Saran, by
judgment and order dated 12th March, 2019, was pleased to hold
me guilty for contempt in the face of the Court and list the case
for hearing on the question of punishment.
E
2. I happened to mention the name of Shri Fali S. Nariman to
buttress my proposition that even legendary Shri Fali Nariman is
of the view that the seniority of a lawyer should be reckoned
from the date of his enrolment and nothing else. However, I was
misunderstood. I along with some office bearers of the National
F Lawyers’ Campaign for Judicial Transparency and Reforms have
instituted Writ Petition No.2199/2019 in the High Court of Delhi
for a declaration that the Explanation to Rule 6 of the Bar Council
of India Rules is void inasmuch as it explains that the word “Court”
does not mean the entire Court, but the particular Court in which
G the relative of a lawyer is a Judge. I instituted the said petition
only to raise the concern many lawyers share with me regarding
the immediate relatives practising in the very same Court where
their relative is a Judge. In retrospection I realize that it was an
error on my part to have arrayed Shri Fali Nariman as a
Respondent to the said petition. I regret the same; no words can
H sufficiently explain my contrition and regret. I also in retrospection
RE : VIJAY KURLE & ORS. 1055
[DEEPAK GUPTA, J.]
realize that I have erred even during the conduct of the above A
case before this Hon’ble Court and I probably would not have
kept upto what is expected of me as a lawyer in the Bar for 35
years and crossed the age of 60. I feel sorry, express my contrition
and tender my unconditional apology, while maintaining that some
of the accusations levelled against me in the judgment dated 12th
B
March, 2019 are absolutely wrong, which are, ex facie, black and
white, and as incontrovertible as day and night.
3. The apology tendered by me hereinabove be accepted and I
may be purged of the contempt.
C
Solemnly sworn at Delhi Sd/-
this 27th day of March, 2019 (Mathews J. Nedumpara)”
53. A close perusal of the affidavit filed by Mr. Nedumpara shows
that in retrospect Shri Nedumpara felt that it was an error on his part to D
have arrayed Shri F.S. Nariman as respondent in the writ petition filed
by him in the Delhi High Court. He states that he regrets the same and
no words can sufficiently explain his contrition and regret. He also states
that he realises that he had erred during the conduct of the case before
this Court. The two complaints filed by Shri Vijay Kurle and Shri Rashid E
Khan Pathan were sent even before Shri Nedumpara had been heard
on the issue of sentence. What the complainants alleged in the complaints
is disproved from the apology of Shri Nedumpara submitted to the Court.
This unqualified apology of Shri Nedumpara was accepted by the Court.
In this background we are unable to find any plausible explanation for
Shri Vijay Kurle to have used the words “exposed Justice Nariman in F
front of advocates and public”. No lawyer can threaten to expose a
judge in front of the advocates and public on the basis of some vague
and reckless allegations. This language is highly disrespectful and
scandalises the Court and, therefore, amounts to committing contempt
of the Court. G
54. On Page 60 of the first complaint Shri Vijay Kurle has stated
as follows:
“The threats given by Justice Nariman to Advocate Nedumpara
on 5th March, as published in “Bar & Bench” is itself an offence
of Contempt on the part of Justice Rohington Fali Nariman.” H
1056 SUPREME COURT REPORTS [2020] 7 S.C.R.
A 55. What has been published in Bar & Bench has not been placed
on record. Shri Vijay Kurle has filed a large number of documents but
has not stated on what basis he has alleged that Shri Nedumpara was
threatened by Justice Nariman. Admonishment by a Judge cannot be
said to be a threat. Since the alleged contemnors have not placed any
material on record to show how Justice Nariman threatened Shri
B
Nedumpara, this itself amounts to making a false accusation against a
Judge. Shri Nedumpara in his affidavit has not made any reference to
any threats given to him by any Member of the Bench. This clearly
shows that the allegation made by Shri Vijay Kurle is false.
56. It is alleged by Shri Vijay Kurle, that Justice Nariman had
C “misused his power to use material outside the court record and
received by personal knowledge without disclosing its source” and
therefore, his action was against earlier judgments of this Court and
amounted to contempt of this Court. Various judgments have been cited
but most of them are not at all relevant to the case in hand. Furthermore,
D even if he wanted to criticise the judgment on this ground, Shri Vijay
Kurle could have used temperate language but what has been said at
Page 69 of the first letter is highly contemptuous. The said allegations
read as follows:
“The malafides of Justice Rohington Fali Nariman are writ large
E as can be seen from the fact that the materials relied by him in
para 3,4,5,6,7,8 are totally the personal work of Justice Rohington
Nariman and as can be easily inferred. It is clear that the most of
the material supplied is from Justice S.J. Kathawala of Bombay
High Court who in turn is Rohington’s close and rival of Adv.
Nedumpara.”
F
57. A judge may be right or wrong and a party may criticise the
judgment on any ground. However, in the allegations quoted hereinabove
various serious charges of malafide have been levelled against a sitting
Judge of this Court. Further, it is stated that material relied upon by
Justice Nariman was supplied by Justice Kathawala of Bombay High
G Court, who is close to Justice Nariman and also happens to be a rival of
Shri Nedumpara. Shri Vijay Kurle has failed to place any material on
record to show that the material relied upon by Justice Nariman was
supplied by Justice Kathawala. In fact, a perusal of the material shows
that the materials relied upon were a matter of public record and were
H part of orders passed in cases that Shri Nedumpara appeared in or part
RE : VIJAY KURLE & ORS. 1057
[DEEPAK GUPTA, J.]
of petitions filed by Shri Nedumpara himself. There is not an iota of A
evidence on record to show that Justice Kathawala is close to Justice
Nariman. We also fail to understand on what basis the Shri Vijay Kurle
has stated that Justice Kathawala is a rival of Shri Nedumpara. There is
no question of rivalry between the Bar and the Bench or between a
Judge and a lawyer. Justice Nariman in his judgment has relied upon the
B
orders passed by the Bombay High Court in various cases. These are all
public documents and we fail to understand how the alleged contemnors
assumed that these documents were supplied by Justice Kathawala.
58. Some allegations made on Pages 2-3 of the first complaint are
as follows:
C
“CHARGE 2 # Lack of basic knowledge to interpret the ratio
decidendi of any case law.
xxx xxx xxx
CHARGE 3 # Don’t know the basic law of criminal jurisprudence
and basic law of evidence and acted in denial of whole basis of D
indian constitutional.”
59. Similarly, the allegations made at Pages 71-72 of the first
complaint are as follows:
“Hence Justice Rohington Fali Nariman by placing reliance on
E
the Notice in Contempt proceeding, and making it as a basis to
draw conclusion of conduct of an advocate knowing fully well
that the said matter is still subjudice before sub-ordinate court,
have violated Fundamental rights of Advocate Nedumpara and
acted against the Constitutional mandate and thereby breached
the oath taken as a Supreme Court Judge and is unbecoming of a F
Judicial officers.
Therefore reliance placed by Justice Rohington Fali Nariman on
show cause Contempt notice is illegal and shows his lack of
knowledge.
Hence the one-sided blanket reliance by some illiterate Judges G
having half-backed knowledge of law will broke the fabric of
cardinal principles of criminal and civil jurisprudence.
VI) CONSPIRACY TO DISTROY IMAGE AND KEEP
ADVOCATE AWAY FROM HIS CLIENTS CAUSING
H
1058 SUPREME COURT REPORTS [2020] 7 S.C.R.
A SERIOUS PREJUDICES TO THEIR SUBJUDICE
CAUSE EX-FACE PROVED:
In the present case Justice Nariman is being aggrieved by Petitions
filed by Nedumpara against his father Fali Nariman and also against
his close Justice Kathawalla and therefore had taken reference
B of different irrelevant cases and inadmissible evidences. The object
of the Justice Nariman as stated eatlier, is not really to cleanse
and purify the legal profession, or to protect dignity and majesty
of justice but to silence the advocates who appear for his opponents,
so that litigation could be won on a different turf.”
C As far as these allegations are concerned, the Bench was only
referring to various cases where action had been initiated against Shri
Nedumpara and noted that he is in a “habit of terrorising Tribunal
members and using intemperate language to achieve his ends before
several Judges of the Bombay High Court”. Shri Nedumpara filed a
discharge application in these proceedings stating that he has nothing to
D do with these complaints. Therefore, how can the alleged contemnors
now raise issues which were never raised by Shri Nedumpara. On Page
71 of the first complaint it has been alleged that by placing reliance on
the notice issued in contempt proceedings the learned Judge has violated
fundamental rights of Shri Nedumpara and therefore breached his oath
E taken as a Judge of this Court.
60. The allegations made at Page 72 of the first letter are highly
derogatory and scandalous. The Bench placed reliance on a show cause
notice in reference to Shri Nedumpara to show that the “advocate has
embarked on a course of conduct which is calculated to defeat the
F administration of justice in this country”. This in no way reflects lack
of knowledge. The language used in the latter portion quoted hereinabove
indicating that Justice Nariman is an illiterate Judge having half baked
knowledge of law is a scandalous and scurrilous allegation which
definitely amounts to contempt of Court.
G 61. In Charge VI at Page 72, Shri Vijay Kurle has alleged that
Justice Nariman wanted to keep advocates away from his Court.
62. The alleged contemnors by saying that the object of Justice
Nariman while taking action against Shri Nedumpara was “not really
to cleanse or purify legal profession or to protect the dignity and
majesty of justice but to silence the advocates who appear for his
H
RE : VIJAY KURLE & ORS. 1059
[DEEPAK GUPTA, J.]
opponents, so that the litigation could be won on a different turf” A
have made allegations that are scandalous and challenge the impartiality
of Judges of this Court.
63. Again, in Para 79 for the first letter, the alleged contemnors
have stated as follows:
“However Justice Nariman is trying to create an atmosphere B
of prejudice against some clients so that no advocate will
accept their brief and they will be denied their constitutional
right of being represented by a Lawyer of their choice.”
These allegations that Justice Nariman is wanting to create an
atmosphere of prejudice against some clients is a false allegation for C
which no supporting material has been given by the alleged contemnors
in their reply. We do not even understand how the order passed in Writ
Petition (C) No. 191 of 2019 or in Suo Motu Contempt Petition No. 1 of
2019 would lead to the conclusion that some clients would be prejudiced
as no advocate would accept their brief. There is no basis for this D
absolutely false allegation which also amounts to contempt of Court.
64. On Page 81 of the first complaint Shri Vijay Kurle has stated
as follows:
“It is settled law that person having half backed knowledge
of law should not be allowed to participate in court proceedings E
[Vide : N. Natarajan Vs. B.K. Subba Rao AIR 2003 SC 541]
Then how the person having half backed knowledge will be
allowed to hold the post of Judges in the of the Highest Court of
Country i.e. Supreme Court.
F
This Country had seen the activities of Justice Karnan,
where he had passed sentence of punishment against the Judges
of Supreme Court. In the present case, the advocate, who is also
officer of the Court is being punished by Justice Rohington Nariman
& Justice Vineet Saran (both are Justice Karnan in making) in an
arbitrary manner at their whim & fancies, rather to satisfy their G
personal grudges and settle the scores of people who are interested
to see Adv. Nedumpara is out of his mission of Transparency. If
this is not checked in time then this evil get propagated as
tolerance will boost their confidence.”
H
1060 SUPREME COURT REPORTS [2020] 7 S.C.R.
A These allegations on the face of it are highly contemptuous. Shri
Vijay Kurle is saying that both the Judges who comprised the Bench
have half baked knowledge of law and they could not have been allowed
to hold the post of Judges in the Supreme Court of India. The language
used is highly intemperate and scandalises the Court and, therefore,
amounts to contempt.
B
65. The next allegations on Pages 86-87 are as follows:
“Hence the Observation by Justice Rohington Fali Nariman are
Unconstitutional and is Contempt of Supreme Court and also
reflects their poor level of understanding and lack of basic
C knowledge of law.
As per section 52 of Indian Penal Code Justice Rohington Fali
Nariman is not entitled for any protection of good faith.
Section 52 reads as under;
D “Good faith.- Nothing is said to be
done or believed in “good faith”
which is done or believed without due
care and attention.”
33. Furthermore in para 8 of the Judgment dated 12th March,
2019 Justice Rohington Fali Nariman as he felt aggrieved of case
E
against his close Judge of Bombay High Court (Justice S.J.
Kathawala) had observed that the prayers of W.P.(L) No.1180 of
2018 are contemptuous. This is again travesty of Law on two
counts:
(i) Said Petition was decided by Division Bench of High Court
F
vide order dated 26.07.2018 and at that time High Court did not
find it contemptuous then how Justice Rohington Fali Nariman
after a period of 8 months can not comment it to be contemptuous.
(ii) Secondly the prayers were regarding initiation of Criminal
proceeding against Justice S.J. Kathawalla who acted against
G various Supreme Court Judgments and making such prayers is
fundamental right of the victim it cannot be termed as Contempt.”
66. Further on Page 124 of the first complaint it is alleged as
follows:
H
RE : VIJAY KURLE & ORS. 1061
[DEEPAK GUPTA, J.]
“Hence it is clear that Justice Rohington Fali Nariman is a person A
who neither knows the law nor knows its application i.e. neither
Command over shastras nor put it into practice.”
The alleged contemnors could have criticised the correctness of
the judgment, but the allegation that observations of Justice Nariman
amount to contempt of Court or show his poor level of understanding B
and lack of basic understanding of law is not language which a lawyer is
expected to use against a sitting Judge of the Supreme Court. Again, in
this very quoted portion a totally unfounded allegation has been made
that Justice Nariman was aggrieved since allegations had been levelled
against his close Judge of the Bombay High Court (Justice S.J.
Kathawala). The conclusion drawn by Shri Vijay Kurle is not only C
incorrect but totally false and appears to have been done with the mala
fide intention of harming the reputation of Justice Nariman and raising
questions with regard to his impartiality or ability. In fact, Writ Petition
No.(L)-1180 of 2018 was filed by Shri Nedumpara before the Bombay
High Court praying that criminal action under Contempt of Courts Act D
be initiated against Justice Kathawala. This writ petition was dismissed
by the Bombay High Court. The Bombay High Court did not decide
whether Shri Nedumpara had committed contempt of Court or not. But
the allegations made by Shri Nedumpara were not accepted. This means
that the Bombay High Court did not find any merit in the petition of Shri
Nedumpara and dismissed the same. Nothing has been placed on record E
to show that this judgment is under challenge before this Court. The
Bombay High Court was not dealing with the contempt proceedings.
The Bench has only relied upon the judgment to support his observation
that Shri Nedumpara was in the habit of making such accusations against
sitting Judges of the Court. F
67. We also fail to understand how Shri Vijay Kurle who is a
lawyer claims that it is his fundamental right to initiate criminal proceedings
against Judges. Some members of the Bar cannot hold the judiciary to
ransom by threatening Judges of initiating criminal action. If this trend is
not dealt with firmly then any party against whom a case is decided will G
start filing criminal cases against judges.
68. The relationship between the Bench and the Bar should be a
cordial relationship with mutual respect for each other. Lawyers who
try to browbeat or threaten judges have to be dealt with firmly and there
H
1062 SUPREME COURT REPORTS [2020] 7 S.C.R.
A can be no ill-founded sympathy for such lawyers. Such lawyers do nothing
to help the legal fraternity much less the Bar.
69. Shri Vijay Kurle has further made the following observations
in Para 35 on page 103 of the first complaint:
“35. In view of the above settled law it is clear that Justice
B Rohington Fali Nariman is not having basic knowledge of law or
he has a tendency to lower down the authority of Hon’ble Supreme
Court by treating him above law.”
Again, these allegations are not only totally baseless but the
allegations themselves lower the majesty of this Court.
C
70. Shri Vijay Kurle in Para 36 on page 112 of his letter has stated
as follows:
“36. Worst part is that Justice Justice Rohington Fali Nariman in
para 8 of his order tried give a certificate to Justice Kathawalla
D that he is being attacked for lawful order. In fact the petition was
filed by advocate for observations against an advocate without
issuing any notice to him which is are prima-facie illegal and against
the settled legal principle by various Supreme Judgments and more
particularly in Sarwan Singh Lamba’s Case (Supra). Said matter
being subjudice should not be commented by Justice Rohington
E Fali Nariman.
So the Criminal minded Judges by twisting material facts, by
misleading legal position and by misinterpreting the settled law of
Hon’ble Supreme Court are trying to make the Court as their
personal property. Absolute Power corrupts Absolutely. And
F such type of Judge are running syndicate to extort money for
giving favourable orders to the underserving people.”
We are constrained to observe that Shri Vijay Kurle has totally
misread and misquoted the order of Justice R.F. Nariman. In Para 8 of
the said order in Writ Petition (C) No. 191 of 2019 after referring to the
G order passed by a learned Single Judge of the Bombay High Court it is
recorded that Shri Nedumpara filed Writ Petition No.L-1180 of 2018 in
his own name against the learned Single Judge of the Bombay High
Court who has passed the order and the learned Single Judge was arrayed
as the sole respondent in the said writ petition. The Court records that
the petition was dismissed as not maintainable. Therefore, the allegations
H
RE : VIJAY KURLE & ORS. 1063
[DEEPAK GUPTA, J.]
made, that the matter was subjudice are totally false and misleading. A
The Court has noted that the matter has been finally decided and no
material has been placed on record to show that this judgment has been
challenged.
71. What is even more shocking is the next paragraph where it is
stated that criminal minded judges by twisting facts and by misleading B
legal position and misinterpreting the laws of this Court are trying to
make the Court as their personal property. In the context in which these
allegations have been made it is apparent that though not named, these
allegations are against the Judges who constitute the Bench which decided
Writ Petition (C) 191 of 2019. No discussion is required to hold that such
allegations are scandalous and amount to contempt of Court. Shri Vijay C
Kurle has the temerity and gall to make the accusations against 2 sitting
Judges of this Court alleging that they are criminal minded Judges, that
they have twisted material facts and have misinterpreted the settled
laws of this Court. We fail to understand what is meant by ‘misleading
legal position’. The allegations that these Judges are trying to make the D
Court their personal property and are running a syndicate and passing
favourable orders to undeserving people to extort money are scandalous
and scurrilous and no great discussion is required to hold that they amount
to contempt of Court.
72. In Para 37, on page 113 of the first complaint, Shri Vijay Kurle E
alleges that Shri Nedumpara wanted prosecution of a learned Judge of
the Bombay High Court and also wanted compensation for violation of
his fundamental rights. That petition has been dismissed by the Bombay
High Court. As far as we know that judgment has not been challenged
which clearly indicates that the Bombay High Court did not accept the
contention of Shri Nedumpara that the judge was liable to be prosecuted F
or that Shri Nedumpara was entitled to any compensation. It is surprising
that thereafter the alleged contemnors made the following submissions
on page 114 of the first letter:
“So observation of Justice Justice Rohington Fali Nariman are
prima-facie seems to be the outcome of his frustrated mind or G
done to help Justice Kathawala of Bombay High Court whose
orders are set aside by Higher Benches for his misuse of power
with strict & harsh observation. [Trident Steel and Engineering
Co. Vs. Vallourec 2018 SCC OnLine Bom 4060]. The said
Justice Kathawala who is caught in sting opertation & his corrupt H
1064 SUPREME COURT REPORTS [2020] 7 S.C.R.
A practices are under scrutiny before (Five – Judge Bench of
Hon’ble Bombay High Court). Hence it is clear that Justice
Rohington Fali Nariman tried to save an accused Judge and in
both the eventuality he is unfit to work as a Judge of a Highest
Court and is liable to be removed forthwith by using powers under
“In-House-Procedure’ as done in Justice Karnan’s case.’’
B
Again, the allegations made are totally scandalous. Alleging that a
judge has passed an order as an outcome of his frustrated mind is, in our
opinion, a highly scandalous allegation. The other allegation that the order
was passed with a view to help Justice Kathawala is equally scandalous.
These allegations also amount to contempt.
C
73. On Page 93 of the first letter the following allegations have
been made:
“So Division Bench of Hon’ble Bombay High Court which decided
the Writ Petition of Mr. Nedumpara did not find it as Contempt.
D Full Bench of Supreme Court did not find it as Contempt but after
8 months Justice Rohington Fali Nariman call it as contemptuous
it not only being judicial impropriety to be abide by views of larger
bench but even by brother Judges but also proves ulterior motive
of Justice Nariman.
E The Petition for prosecution of Judge can never be contempt
if not being frivolous. Rather it is duty of the advocate to make
complaint of corrupt Judges.”
74. Further on Page 134 of the first letter the alleged contemnors
have made the following allegations:
F “In present case Justice Nariman had done the same wrong. It is
done with malafide intention and for ulterior purposes as ex-facie
proved from the record and explanation given in the proceeding
prasa.
XOXO) Under these circumstances since Justice Nariman is
G Judge of a Supreme Court, he does not deserve any leniency...”
75. On Page 135 of the first letter, Shri Vijay Kurle has made the
following allegations:
“In the present case when Justice Rohington Fali Nariman had
not taken any action on the spot i.e. on 5th March, 2019 then there
H
RE : VIJAY KURLE & ORS. 1065
[DEEPAK GUPTA, J.]
was no such urgency to bot to follow the procedure of Section 14 A
& Section 15 of Contempt of Courts Act 1971 as ruled by Full
Bench of Hon’ble Supreme Court in Dr. L.P. Mishra Vs. State
of U.P. (1998) 7 SCC 379 (Supra).
But Justice Rohington Fali Nariman had acted against the
procedure without any explanation as to what is the urgency to B
not to follow the procedures mandated under the law. This itself
is a ground to infer that he have been actuated by an oblique
motive or corrupt practice. [Vide :- R.R. Parekh Vs. High Court
of Gujarat (2016) 14 SCC 1]”
The allegations that “this itself is a ground to infer that he have C
been actuated by an oblique motive or corrupt practice” is a totally
baseless and unfounded allegation which scandalises this Court and
lowers the majesty of this Court. When any person whether he be a
party to the proceedings or not criticizes a judgment of a court he could
do so as long as that party does not level allegations of malafide, ulterior
motives, extraneous reasons etc. In the portions quoted above Shri Vijay D
Kurle has levelled allegations challenging the impartiality of Judges of
this Court and he has also stated that the orders were passed with malafide
intention and ulterior purpose. These allegations amount to scandalising
the court and therefore there can be no manner of doubt that Shri Vijay
Kurle is guilty of having committed contempt of this Court. E
76. On Pages 150-154 of the first complaint Shri Vijay Kurle has
stated as follows:
“XIII) #CHARGE# PASSING ORDER WITH
ULTERIOR MOTIVE TO SAVE ACCUSED JUDGE
S.J.KATHWALA AGAINST WHOM “INDIAN BAR F
ASSOCIATION” GOT DEEMED SANCTION MAKES
JUSTICE ROHINGTON FALI NARIMAN LIABLE FOR
PROSECUTION UNDER SECTION 218 OF INDIAN
PENAL CODE.
xxx xxx xxx G
This being the position, there was no occasion or reason for Justice
Rohington Fali Nariman to make such irrelevant, unlawful and
uncalled for observation. It is clear that said observations are made
with ulterior motive to save his friend Justice S.J. Kathawalla and
H
1066 SUPREME COURT REPORTS [2020] 7 S.C.R.
A therefore liable to be prosecuted under section 218 of Indian Penal
Code.
XIV) CHARGE # INABILITY TO INTERPRET THE
SUPREME COURT JUDGMENT:
In para 9 of the judgment Justice Rohington Fali Nariman
B relied upon the Constitution Bench judgment in the case of
Sukhdev Singh Sodhi v. Chief Justice S. Teja Singh, 1954
SCR 454 to interpret that as per said ruling the Judge who is
personally attacked has to hear the matter himself. In fact the
law laid down in the said judgment is exactly contrary.”
C The allegation that Justice Nariman acted with ulterior motive to
save his friend Justice Kathawala for the reasons stated above is a
totally scandalous and contemptuous allegation. The next allegation is
that Justice Nariman acted in violation of a judgment of this Court in
Sukhdev Singh Sodhi’s case (supra). Without commenting on the
D correctness or otherwise of the allegations, the following observations
under this heading are totally contemptuous:
“This ex-facie proved very poor level of understanding of Justice
Rohington Fali Nariman.
….
E
But this provision and judgment was conveniently, deliberately
ignored by Justice Rohington Fali Nariman or he may not know
this basic law which is sufficient to prove his incapacity and poor
level of understanding which is sufficient to remove him forthwith
from judiciary.”
F
The language used by Shri Vijay Kurle that Justice Nariman does
not even know the basic law and, therefore, is incapacitated due to his
poor level of understanding to be removed forthwith from the judiciary is
highly intemperate language which amounts to gross contempt of Court.
77. At Page133 of the first complaint it is alleged as follows:
G
“In Kapol Co-op. Bank Ltd. Vs. State of Maharashtra 2005
Cri.L.J.765 it is ruled that the term “Abuse of Process of
Court” means act of bringing frivolous, vexations and oppressive
proceedings.
H
RE : VIJAY KURLE & ORS. 1067
[DEEPAK GUPTA, J.]
The same is the act of Justice Rohington Fali Nariman by A
bringing Contempt case against Advocate Nedumpara.”
78. Again, at Pages 167-168 of the first complaint following has
been observed:
“So it is clear that the process of law is being grossly abused by
Justice Rohington Fali Nariman & Justice Vineet Saran under B
impressin that the Court is their personal & private property.
xxx xxx xxx
CHARGE # BREACH OF OATH TAKEN AS A HON’BLE
SUPREME COURT JUDGE BY ACTING PARTIALLY, C
WITH ILL-WILL AND NOT UPHOLDING THE
CONSTITUTION AND LAW.”
For the reasons stated above the allegation that 2 Judges consider
this Court as their personal property is a scandalous allegation and amounts
to contempt. D
79. In the complaint filed by Shri Vijay Kurle in Para 49 on pages
171-173, there is a reference to the complaint filed by Shri Rashid Khan
Pathan and it is stated that the other complaint filed by Human Rights
NGO is self-explanatory. The allegations read as follows:
“That the another complaint by Human Right (N.G.O.) in other E
matter against Justice Rohington Fali Nariman & Justice Vineet
Saran, is self-explanatory about incapacity, poor level of
understanding, tendency to undermine the authority of Supreme
Court and bringing the rule of law into disrepute and committing
fraud on power to grant unwarranted relief to the undeserving
F
accused and denying relief to the deserving victim woman.
xxx xxx xxx
That accused Justice Rohington Fali Nariman & Vineet Saran in
Criminal Appeal No.387 of 2019 [Aarish Asgar Qureshi vs.
Fareed Ahmed Qureshi 2019 SCC OnLine SC 306] had with G
malafide intention to help accused had observed that police report
have no evidentiary value for directing enquiry against the accused
husband on the application given by wife.
xxx xxx xxx
H
1068 SUPREME COURT REPORTS [2020] 7 S.C.R.
A But accused Judges in a hurry to help accused entertained the
appeal against the order directing the compliant and passed order
in utter disregard and defiance of law laid down by Hon’ble
Supreme Court and also against the statutory provisions of Section
341 of Criminal Procedure Code and acted unconstitutionally.”
B Not only are these allegations scandalous and contemptuous and
undermine the authority of this Court, but this clearly shows that the Shri
Vijay Kurle was aware of the complaint filed by Shri Rashid Khan Pathan.
This clearly indicates that Shri Rashid Khan Pathan had not only sent
the complaint to the Hon’ble President of India and the Chief Justice of
India but had communicated the same to others including Shri Vijay
C Kurle and therefore, this complaint was available in the public domain.
2nd Complaint dt.19.03.2019 by Shri Rashid Khan Pathan
80. We now take up the complaint filed by Shri Rashid Khan
Pathan, who is said to be the National Secretary of the Human Right
D Security Council (N.G.O). The basis of the complaint is an order passed
by two Judges of this Court (Justice R. F. Nariman and Justice Vineet
Saran) in Criminal Appeal No.387 of 2019. In paragraphs 4 and 6 of this
complaint, the complainant made the following allegations:-
Pgs. 4-5
E “4. The present Complaint is regarding the misuse of power of
Justice Rohinton Fali Nariman & Justice Vineet Saran while
quashing the prosecution ordered by Hon’ble Bombay High Court
against accused Under Section 340 of Criminal Procedure Code.”
xxx xxx xxx
F
6. The reasoned and lawful order of High Court was set aside by
accused Judge for extraneous consideration and in contempt of
Constitution Bench judgment of Hon’ble Supreme Court.”
81. Criminal Appeal No. 387 of 2019 was filed by a person who
was aggrieved by the order whereby the High Court had directed that
G action be taken against him under Section 340 of the Cr.PC. Vide judgment
dt. 26.02.2019 in Aarish Asgar Qureshi v. Fareed Ahmed Qureshi
and Anr.16 this court set aside the said order. In that case the respondent
before this Court was represented by Shri Nilesh Ojha, alleged contemnor
16
H 2019 (4) SCALE 606
RE : VIJAY KURLE & ORS. 1069
[DEEPAK GUPTA, J.]
no.3 herein. It was virtually a private case between two parties having A
no element of public interest and therefore we do not understand as to
why Shri Rashid Khan Pathan was so upset by this order that he filed a
complaint in his capacity as National Secretary of the Human Rights
Security Council.
82. Even assuming that Shri Rashid Khan Pathan, could criticise B
the judgment he should have stopped there. But in this case, Shri Rashid
Khan Pathan did not stop at criticising the judgment. He has
unambiguously attributed motives to the Judges by using phrases such
as “judges deliberately ignored the settled legal position” or
“deliberately and conveniently ignored” reference to certain
observations, and “deliberately misinterpreted” certain judgments cited C
before the Court. Further, it is alleged that the fact that the Bench acted
in defiance of the Constitution Bench judgment of the Court is sufficient
to prove the mala fide of the accused Judges. First of all, it is not for
Shri Rashid Khan Pathan to decide whether the judgment is correct or
not. There is a legal procedure established whereby a review petition or D
a curative petition could be filed. We cannot go into the merits of the
judgment but even assuming that the judgment is not in consonance with
the judgment of the Constitution Bench then also that is no ground to
allege mala fide against the Judges comprising the Bench. He has also
made allegations that the Judges have breached the oath of office and
acted in a biased manner. E
83. One of the reasons given by Shri Rashid Khan Pathan for
filing the complaint is that he had filed a complaint against Shri Fali S.
Nariman, Senior Advocate of this Court, alleging anti-national activities
being committed by Shri Fali S. Nariman. In that case, Shri Rashid Khan
Pathan was represented by Shri Nilesh Ojha, alleged contemnor no.3. F
On this ground, it is averred that Justice Nariman should not have heard
the matter. The complaint in question is stated to have been filed on
19.02.2019. No material has been placed on record to show whether
notice, if any, was issued on this complaint. The judgment in question
was delivered on 26.02.2019 and there was no request by Shri Nilesh G
Ojha that any of the Judges should recuse from the hearing of the matter.
There is no material to show that the factum of this complaint was brought
to the notice of the Hon’ble Bench. Even if that had been brought to the
notice, we find that this should not be a sufficient ground for recusal. If
Judges start recusing on any such frivolous grounds, it would lead to
H
1070 SUPREME COURT REPORTS [2020] 7 S.C.R.
A forum hunting. If a litigant wants to avoid any Judge, he can easily ensure
that a complaint, frivolous or otherwise, is filed against a Judge or a
member of his family and then ask for recusal of the Judge. We cannot
permit the judiciary to be held ransom at the hands of such litigants or
lawyers.
B 84. There are other parts of the complaint by Shri Rashid Khan
Pathan that we would like to highlight:-
Pg.16
“11) xxx
C So the observations of Justice Rohinton Fali Nariman &
Justice Vineet Sareen are not only per-incuriam but Contempt of
law laid down by Full Bench of Hon’ble Supreme Court and also
reflects their lack of basic knowledge.”
Pg. 20
D “But while passing the final order, the reference to said
observations were deliberately and conveniently ignored by the
accused Judges more particularly by Justice Rohinton Fali
Nariman.”
Pg. 33
E “This judgement was relied and referred by respondent Judges in
their judgment dated 26 th February, 2019 but deliberately
misinterpreted it with a view to set aside the lawful order thereby
giving undue advantage to accused.”
Pg. 34
F
“But the Respondent Judges deliberately ignored the settled legal
position by Supreme Court and various High Courts.”
Pg. 39
“Both these judgments were relied by Counsel for wife and are in
G the compilation filed in the Supreme Court. These judgments are
also referred by Ld. Sessions Judge in its order dated 12 th
December, 2018. Said order is annexed with Appeal before
Hon’ble Supreme Court at Page No.172- 194 and abovesaid two
judgments are referred in para 21 (Page No. 185 of S.L.P.) &
Para 22 (Page No. 186 of S.L.P.)
H
RE : VIJAY KURLE & ORS. 1071
[DEEPAK GUPTA, J.]
But Respondent Judges deliberately ignored the said legal A
position settled by Hon’ble Supreme Court and Therefore the said
order dated 26th February, 2019 is not only per-incurriam but
Contempt of Hon’ble Supreme Court.”
Pg. 43
B
“But the Respondent Judges deliberately ignored to reproduce
these paras in their order with ulterior motive to help the accused.
Moreover how the said case law is either applicable or not
applicable is not discussed in the judgment except referring it in a
cursory manner.”
C
Pg. 52
“But Justice Rohinton Fali Nariman acted in utter disregard and
difiance of Constitution Bench’s judgment even if it was brought
to his notice.
D
This is sufficient to prove the malafides of the accused Judges
i.e. Justice Rohinton Fali Nariman & Justice Vineet Saran.”
Pg. 62
“But here the Respondent Judges breach the oath taken as a
Judge by acting contrary to law and in a biased manner and E
therefore they forfeited their right to sit on the chair of highest
Court of the Country.”
Pg. 71
“38). POOR LEVEL OF UNDERSTANDING OF A F
JUDGE:-
xxx xxx xxx”
Pg. 77
“45). Under these circumstance Justice Rohington Fali Nariman G
having knowledge of personal enmity between his father and Adv.
Nilesh Ojha, instead of recusing himself, heard the case
represented by Adv. Nilesh Ojha and out of his earlier prejudices
passed the illegal order by willful disregard and defiance of the
various law laid down by the Hon’ble Supreme Court.”
H
1072 SUPREME COURT REPORTS [2020] 7 S.C.R.
A 85. The allegations in the portions which have been quoted above
allege that the Bench passed orders in wilful disobedience of law and
committed contempt of court, that the judges deliberately and conveniently
ignored certain portions of the judgment cited, that they deliberately
misinterpreted the orders, that they deliberately ignored the settled legal
position, that the judges acted with ulterior motive to help the accused,
B
and that all this is sufficient to prove the malafides of the two judges
whom Shri Rashid Khan Pathan describes as accused. These allegations
are not only false but have been made only with a view to ensure that
Justice Nariman should have recused himself from hearing the case in
which he was still to hear Shri Nedumpara on the question of punishment.
C Further there is an allegation that Justice Nariman had the knowledge of
personal enmity between his father and Shri Nilesh Ojha. The language
used is not only objectionable, but by questioning the impartiality, integrity,
ability of the Judges and by saying that the judges deliberately acted in a
particular manner and raising allegations of malafide against them Shri
Rashid Khan Pathan has also committed contempt of Court.
D
86. We have already extracted large portions of the letters. Both
the letters on their face are totally contemptuous in nature. No litigant
has a right to attribute motives to a Judge. No litigant has a right to
question the integrity of a Judge. No litigant has a right to even question
the ability of a Judge. When the ability, integrity and dignity of the Judges
E are questioned, this is an attack on the institution. It is an attack on the
majesty of law and lowers the impression of the Courts in the public
eye. The allegations in the complaints are scurrilous and scandalous.
Shri Vijay Kurle and Shri Rashid Khan Pathan do not deny that they
have sent these letters. They, in fact, justify the sending of these letters.
F There is not even a word of regret in any of the affidavits filed by them.
87. We now examine the context in which these allegations have
been made. The first complaint by Shri Vijay Kurle dated 20.03.2019 is
basically in relation to the order dated 12.03.2019. Shri Nedumpara was
held guilty of contempt vide order dated 12.03.2019. Notice was issued
G to him for being heard on the issue of punishment. This notice was made
returnable within two weeks and the record shows that this notice was
actually made returnable on 27.03.2019. In the meantime, both Shri Vijay
Kurle and Shri Rashid Khan Pathan sent these complaints praying that
action be taken against the Members of the Bench. This, in our opinion,
is the grossest form of contempt because the intention was to intimidate
H
RE : VIJAY KURLE & ORS. 1073
[DEEPAK GUPTA, J.]
the Judges so that they should desist from taking action against Shri A
Nedumpara. Shri Nedumpara in his affidavit filed in this Court stated
that he barely knew Shri Vijay Kurle and Shri Nilesh Ojha. According to
him, he did not know Shri Rashid Khan Pathan at all. On the basis of the
statement we have discharged Shri Nedumpara. He, in fact, stated that
he came to know about these complaints only after notice was issued
B
and his colleague Mrs. Amin took out the complaints filed by Shri Vijay
Kurle and Shri Rashid Khan Pathan from the social media.
88. In the complaint filed by Shri Vijay Kurle there are references
to many documents and allegations that certain issues raised in the Court
were ignored. The order dated 12.03.2019 convicting Shri Nedumpara
which is the fulcrum of the complaint of Shri Vijay Kurle was passed C
without issuing notice to Shri Nedumpara. Shri Vijay Kurle alleges
ignorance of law and failure to comply with various Constitution Bench
judgments without even caring to ascertain whether these judgments
were actually cited before the Bench or not. There can be no manner of
doubt that this complaint by Shri Vijay Kurle was filed with a view to D
intimidate the Judges so that no action against Shri Nedumpara is taken.
89. Coming to the complaint of Shri Rashid Khan Pathan. The
same relates to the case in which Shri Nilesh Ojha was a counsel for the
respondent. Any party who loses a matter in a Court may turn out to be
disgruntled and may feel that justice had not been done to it. The judgment E
in Aarish Asgar Qureshi (supra) was delivered on 26.02.2019. Shri
Rashid Khan Pathan in his complaint made reference to various cases
which, according to him, were cited before the Bench. He urges that
these cases were ignored or misinterpreted by the Bench. The question
is as to how Shri Rashid Khan Pathan came to know about these facts.
The only source of information could be Shri Nilesh Ojha. F
90. No doubt, any citizen can comment or criticise the judgment
of this Court. However, that citizen must have some standing or knowledge
before challenging the ability, capability, knowledge, honesty, integrity,
and impartiality of a Judge of the highest court of the land. We are
informed that Shri Vijay Kurle has hardly 7 years standing at the Bar. G
His complaint is full of mistakes and he has not even cared to check the
spelling of the name of the Judge who he claims has no knowledge of
law. His professional credentials are not known and we fail to understand
how can he adorn the robes of a Judge to pass judgment on the Judges
of the highest court, that too by using highly intemperate language and H
1074 SUPREME COURT REPORTS [2020] 7 S.C.R.
A language which casts a doubt not only on the ability of the Judges but
scandalises the Court and lowers the dignity and reputation of this Court
in the eyes of the general public. These sort of scandalous allegations
have to be dealt with sternly and nipped in the bud. As far as Shri Rashid
Khan Pathan is concerned, he professes to be the National Secretary of
an NGO. Other than that, it does not even appear that he is a lawyer.
B
What was the public interest in raking up issues with regard to a litigation
which had no element of public interest? It deals mainly with quashing
of the proceedings initiated by the Bombay High Court against a party
under Section 340 of the CrPC. There is no explanation as to what the
case of Aarish Asgar Qureshi (supra) has got to do with this case. It is
C not as if somebody has been put behind bars or the human rights of any
person had been violated. Shri Rashid Khan Pathan is basically waging
a war against the Members of the Bench and against this Court at the
instance of Shri Nilesh Ojha, if not Shri Nedumpara because in his
complaint he states that Shri Nilesh Ojha was the lawyer for the
respondent before the Court and could be the only person who could
D
have supplied the material to Shri Rashid Khan Pathan.
Alleged Contemnor No. 3-Shri Nilesh Ojha
91. This brings us to Shri Nilesh Ojha, alleged contemnor no. 3.
At the outset, we may point out that Mr. Nedumpara in his discharge
E application has very clearly disassociated himself from the letters and
has stated that he barely knows Shri Vijay Kurle and Shri Nilesh Ojha
and has also stated that he has no concern with the communication sent
by them. This is not the stand of alleged contemnor no. 3, Mr. Nilesh
Ojha. He is the National President of the Indian Bar Association of
which Mr. Vijay Kurle is the State President. During these entire
F proceedings he has relied upon a technical objection that he has not
signed the letters, but the tenor of his written submission as well as the
various affidavits again show that he has not disassociated from what
has been said in the complaint. In fact, he has tried to justify the same.
The cat comes out of the bag when we go through Para 12.41 of the
G discharge application filed by Shri Nilesh Ojha. The following averments
are extremely relevant:
“12.41. That, the entire letter dated 23.03.2019 sent by Adv. Milind
Sathe nowhere states that which part of Complaint given by me,
Adv. Vijay Kurle,& Rashid Khan Pathan is wrong or incorrect…”
H
RE : VIJAY KURLE & ORS. 1075
[DEEPAK GUPTA, J.]
This clearly indicates that the letters sent by Shri Vijay Kurle and A
Rashid Khan Pathan were sent with the knowledge and consent of Shri
Nilesh Ojha.
92. We may also now refer to some other facts. The complaint of
Rashid Khan Pathan is based on the case which was argued by Shri
Nilesh Ojha. He has made various allegations that some arguments were B
raised by Shri Nilesh Ojha which were not considered by the Bench or
were brushed aside. He could have come to know about this only if Shri
Nilesh Ojha had told him and therefore, it cannot be believed that Shri
Nilesh Ojha was not aware or did not support what was said in the
complaint of Shri Rashid Khan Pathan. The conduct of Shri Nilesh Ojha
even while arguing the matter was to support each and every thing said C
in the complaints filed by Shri Vijay Kurle and Shri Rashid Khan Pathan.
He may not have signed the complaint but we have no doubt in our mind
that both these complaints were sent in coordination with each other. In
fact, Shri Vijay Kurle in his complaint refers to the complaint made by
Shri Rashid Khan Pathan. If the complaint of Shri Rashid Khan Pathan D
is addressed only to the President of India and the Chief Justice of India,
which was sent on 19.03.2019 how could Shri Vijay Kurle on 20.03.2019
make reference to the allegations in the complaint made by Shri Rashid
Khan Pathan and support the same unless he had read them.
93. As far as the complaint of Shri Vijay Kurle is concerned, it is E
nothing but a proxy battle for Shri Nedumpara. If Shri Nedumpara did
not know Shri Vijay Kurle, how could such a detailed complaint running
into 183 pages have been filed by Shri Vijay Kurle on 20.03.2019 when
the matter of Shri Nedumpara was still pending in this Court. This Court
convicted Shri Nedumpara for contempt of Court by judgment dated
F
12.03.2019 and directed Shri Nedumpara to appear so that punishment
could be imposed on him for contempt of Court. The matter was listed
on 27.03.2019. In our opinion, both these complaints were sent to the
President of India with a view to browbeat this Court so that this Court
is terrorised into not taking action against Shri Nedumpara. In a matter
which was still pending in so far as imposition of punishment was G
concerned, Shri Vijay Kurle and Shri Rashid Khan Pathan had no business
sending these communications. These communications were widely
circulated on social media, as is apparent from the affidavit of
Mrs. Rohini M. Amin filed in the present case where she has stated that
she obtained a copy of the complaint from the social media. Shri Rashid H
1076 SUPREME COURT REPORTS [2020] 7 S.C.R.
A Khan Pathan had addressed his complaint only to the President of India
and the Chief Justice of India. As far as the complaint of Shri Vijay
Kurle is concerned, it is addressed to many other persons including all
Judges of the Supreme Court, all Judges of all the High Courts, all State
Bar Councils and the Bar Council of India. Obviously, the President of
B India or the Chief Justice of India did not put this complaint on social
media and only Shri Rashid Khan Pathan could have done so. It was
also obvious that this was done only with the active connivance and with
the consent of Shri Nilesh Ojha since he is the President of the Indian
Bar Association. It is only when notice of contempt was issued, that Shri
Nedumpara stated that he does not know Shri Vijay Kurle, Shri Nilesh
C Ojha and Shri Rashid Khan Pathan and totally disassociated himself
from the complaints. As far as Shri Nilesh Ojha is concerned, he says
that he has not sent the complaint nor the same was issued with his
knowledge. However, till date Shri Nilesh Ojha has not sent any
communication to anybody or in the public domain that he has
D disassociated himself with the complaint of Shri Vijay Kurle. Shri Nilesh
Ojha is the President of the Indian Bar Association. The complaint is
sent by Shri Vijay Kurle who is the State President of the Maharashtra
and Goa Unit of Indian Bar Association. This was a complaint by Shri
Vijay Kurle not in person but in his official capacity as State President of
the Maharashtra and Goa Unit of the Indian Bar Association. Shri Nilesh
E
Ojha is the President of the Indian Bar Association. When a member of
the body of lawyers sends such a vitriolic communication making
scandalous allegations against Judges the head of such body cannot shirk
responsibility for the same. The head should either immediately send a
contradiction or otherwise it has to be presumed that the complaint has
F been sent with his knowledge, consent and approval.
94. In view of the facts discussed above, we are of the clear view
that the complaint sent by Shri Vijay Kurle was in connivance and at the
behest of Shri Nilesh Ojha. Therefore, we have no doubt in our mind
that all three i.e. Shri Vijay Kurle, Shri Rashid Khan Pathan and Shri
G Nilesh Ojha were working in tandem and making scurrilous and
scandalous allegations against the Members of the Bench, probably with
the intention that the Members of the Bench would thereafter not take
action against Shri Nedumpara.
H
RE : VIJAY KURLE & ORS. 1077
[DEEPAK GUPTA, J.]
Defence of Truth A
95. Though not so much in the oral arguments but in the written
arguments the alleged contemnors have also raised the plea of truth as a
defence. Truth as a defence is available to any person charged with
contempt of Court. However, on going through all the written arguments
and the pleadings, other than saying that the Judges had misinterpreted B
the judgments of this Court or had ignored them or that Justice R.F.
Nariman was biased, there is no material placed on record to support
this defence. The allegations are also scurrilous and scandalous and
such allegations cannot be permitted to be made against the Judges of
highest Court of the country. C
96. Keeping in view the aforesaid discussion, we hold all three
alleged contemnors i.e. Shri Vijay Kurle, Shri Rashid Khan Pathan, and
Shri Nilesh Ojha, guilty of contempt.
97. We place on record our appreciation for the valuable assistance
rendered by Shri Siddharth Luthra, amicus curiae. We also reject all the D
baseless allegations levelled against him by the contemnors.
98. The matter be now listed on 01.05.2020 for hearing the
contemnors on the issue of sentence, through video conferencing.
E
Ankit Gyan Contemnors held guilty.
F
G
H
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