Holding

Notings made by officers in internal government files cannot be the basis of contempt action against those officers or the State.

Summary

The case arose from a dispute over an ad‑hoc appointment of a Public Relations Officer in the Bihar Irrigation Department. The Patna High Court, in a 1983 order, directed that the post be filled regularly within six months or the ad‑hoc appointment would terminate. The State continued the ad‑hoc appointment, leading the High Court to hold several officers in contempt on the basis of their internal notings in departmental files. The Supreme Court held that such notings, being internal opinions and not formal orders under Article 166, cannot constitute contempt of court, and that the State as a juristic person is not liable for contempt on this ground. Consequently, the Court allowed the appeals and discharged the contempt convictions.

Issues considered

Whether notings made by government officers in internal files can amount to contempt of court under the Contempt of Courts Act, 1971.
Whether the State of Bihar, as a juristic person, can be held guilty of contempt for the actions of its officers based on internal notes.
Whether internal governmental notes enjoy privilege or quasi‑privilege that shields them from contempt proceedings.
Interpretation of Article 166 of the Constitution concerning the nature of executive orders and their relation to contempt.

Legislation cited

Contempt of Courts Act, 1971s. 2(c)
Indian Evidence Act, 1872s. 123

Subjects

contempt of courtgovernment internal notesprivilegeArticle 166public service commissionad‑hoc appointmentcivil serviceContempt of Courts Act

Judgment

STATE OF BIHAR ETC. ETC.
A
v.
KRIPALU SHANKER ETC. ETC.

APRIL 28, 1987

[V. KHALID AND G.L. OZA, JJ.] B

Contempt of Courts Act, 1971-Notings made by officers on
,.[.
Government files cannot be made the basis of contempt action against
them.
4 The first Respondent who was discharging the functions of a
~
Public Relations Officer in the Bihar Irrigation Department when that c
post fell vacant in 1979, tiled a writ petition claiming the post for
himself when another person was appointed to that post for six months.
At the time of hearing, it was represented on behalf of the State that the
other person had been appointed only on ad hoc basis for a period of six
months and that after the expiry of that period, the matter would
be referred to the Public Service Commission and that, at that stage, D
the case of the first Respondent would also be considered. On this
assurance, the petition was allowed to be withdrawn on 19th Decem-
'y' ber, 1979. However, the assurance was not respected and no reference
was made to the Public Service Commission for making a regular
appointment to the post, and, in April, 1983, yet another person was
appointed to the post, again on ad hoc basis, and the same was chal- E
lenged by another writ petition. When that petition was heard, the
,,.. Advocate General informed the High Court that the appointment was
only ad hoc and gave the impression that a regular appointment would
~
be made after the expiry of six months and, on that representation, the
High Court disposed of the petition on May 4, 1983, directing inter alia,
that the post should be filled up in a regular way, and that, in case the F
.y
appointment was not made within a period of six months, the ad hoc
appointment shall stand terminated. The six months' period was to
expire on October 17, 1983, and according to the State Government, the
Irrigation Department had written to the Public Service Commission on
April 4, 1983 to give concurrence to the appointment of the ad hoc
incumbent since it was an ex-cadre post and he had been selected by a
G
Selection Committee but that the concurrence was given only on April

~ 2, 1985 and thereafter the matter was further examined with reference
to the provisions of the Rules governing reservations and a decision was
taken to send a requisition to the Public Service Commission for
advertising the post. Accordingly, the post was advertised on May 12, H
1985, setting out the eligibility criteria for selection to the post. The
I
2 SUPREME COURT REPORTS [1987] 3 S.C.R.

A advertisement was challenged by yet another petition on the ground r-
that the eligibility criteria had been so drafted as to suit only the ad hoc
incumbent of the post. The High Court, which summoned the relevant
records from the Government, felt, on their examination, that the
direction given by it while disposing of the earlier writ petition on May
4, 1983 had been disregarded, and, issued notices to the appellants
B calling upon them to show cause why they should not be punished for
contempt for ignoring the order dated May 4, 1983. The appellants
expressed regret but contended that no contempt had been committed
by them for the reason that expression of views in the notings made on
the f"tles, whether they were right or wrong, did not amount to contempt
of Court, as no order had been passed appointing the ad hoc incumbent
C after October 17, 1983. The officials of the Public Service Commission
pleaded that the appointment of the ad hoc incumbent from October 18,
-
1983 should be treated as a fresh appointment, that they did not know
about the order passed by the High Court, and that though concurrence
was given, it had been withdrawn when the correct facts were made
known to them.
D
The High Court, after going through the relevant files of the State
Government and the Public Service Commission came to the conclusion
that, although the State of Bihar as a juristic person was not liable for
contempt for the reason that the Chief Minister had minuted that its
order must be obeyed and the Chief Secretary had noted that the adhoc
E incumbent should not be granted further adhoc appointment, the
appellants, inspite of the advice of the Advocate General that taking
any step to appoint the adhoc incumbent would amount to contempt of
Court, were busy trying to find out how to ignore its earlier order. The
High Court further observed that when its earlier direction was that
--'
regular appointment should· be made through the Public Service Commi·
F ssion, there was no occasion for seeking the concurrence of the latter for
the appointment of the ad hoc incumbent. According to the High Court,
the whole file gave the impression that the appellant Officers were not
reconciled to the orders passed by it earlier. In these premises, the High
Court convicted the appellants for contempt and the adboc incumbent
of the post for abetting contempt sentencing each of them to a fine of
G Rs.50 in default to suffer simple imprisonment for two weeks.
Allowing the appeals and discharging the contempt orders passed
by the High Court,

HELD: Notings made by officers in the files cannot be made the
basis of contempt action against each such officer who makes the
H notings. [lOD]
STAIB OF BIHAR v. KRIPALU SHANKAR 3

.--\ (i) A government functions by taking decisions on the strength of A
views and suggestions expressed by the various officers at different
levels, ultimately getting finality at the hands of the Minister con-
cerned. Till then, conflicting opinions, views and suggestions would
have emanated from various officers at the lower level. There should
not be any feUer on the fearless and independent expression of opinions
by officers on matters coming before them through the files. The expre- B
ssion of opinion in internal files are for the use of the department and
not for outside exposure or for publicity. To rmd officers guilty for
expressing their independent opinion, even against orders of courts in

- deserving cases, would cause impediments in the smooth fundioning of
the Government. [9H; lOA-C]
(ii) Officers of the Government are often confronted with orders C
of courts which are impossible of immediate compliance for various
reasons. They may find it difficult to meekly submit to such orders. On
such occasions, they Will necessarily have to note in the files, the
reasons why the orders cannot be complied with and also indicate that
the Court would not have passed those orders if full facts were placed
D
before them. The notings differ from officer to officer. It may well he
that the notes made by a particular officer, technically speaking, is in
disobedience of an order of the Court or may be in violation of such
1
order, but a more experienced officer sitting above him can always
correct him. We must guard against being over sensitive, when we come
across objectionable notings made by officers, some times out of inex-
E
perience, some times out of over zealousness and some times out of
ignorance of the nuances of the question oflaw involved. [UA-B]
(iii) The functioning of the Government in a State is governed by
Art. 166 of the Constitution. A study of this Article makes it clear that
the notings in a file get culminated into an order affecting rights of
parties only when it reaches the head of the department and is expres- F
sed in the name of the Governor and authenticated in the manner
provided in Art. 166(2). Viewed in this light, it cannot he said that what
is contained in a notes file can ever be made the basis of an action either
in contempt or in defamation. The notings in a notes file do not have
behind them the sanction of law as an effective order. It is only an
expression of a feeling by the concerned officer on the subject under G
review. To examine whether contempt is committed or not, what has to
be looked into is the ultimate order. The expression of opinion in notes
Ille at different levels by concerned officers will not constitute Criminal
Contempt; it would not constitute Civil Contempt either, for the reason
that mere expression of a view or suggestion will not bring it within the
vice of sub-s. (c) ofs. 2 of the Contempt of Courts Act, 1971. [12A-E] H

.,. ---'IM· - -
4 SUPREME COURT REPORTS [1987] 3 S.C.R.

A
Bachhittar Singh v. State of Punjab, [1961] Supp. 3 S.C.R. 713, r-
relied on.
(iv) The internal notes file of the Government, maintained
according to the Rule of Business, enjllys quasi-privilege and a dis-
closure in such communications cannot be made the basis of an action in
contempt. The general principle on which confidentiality of State docu·
B
ments should be protected is that if a person is involved in litigation, the
Courts can order him to produce all the documents he has which relate
__....
.
to the issues in the case. Even if they are confidential, the Court can (_
direct them to be produced when the party in possession does not pro-

c
duce them, for the other side to see, or, at any rate, for the Court to see.
When the Court directs production of these documents there is an im·
plied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a \
-
_,A
limitation that the side for whose purpose documents are summoned by
the Court cannot use them for any purpose other than the one relating
to the case involved. [lOE-FJ
D Home Office v. Harman, (1981] 2 W.L.R. 310; Harman v. Secret·
ary of State for the Home Department, [1983] A.C. 280 and S.P. Gupta
v.Union of India, (1982] 2 S.C.R. 365, referred to.
y

(v) In this case, the Court, after looking into the notes file could r
have passed appropriate orders giving relief to the affected party and
E expressing its displeasure at the manner in which its order was
implemented instead of initiating action on the notings made in the file.
That way the Court would have enhanced its prestige. [ISB-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 871
1· --
of 1986 etc. !:
f •'.
From the Judgment and Order dated 29. J.1986 of the Patna High
Court in Misc. Judicial Case No. 356 of 1985.

K.K. Venugopal, Jaya Narain, R.P. Singh, M.P. Jha, B.P.
Singh, Ranjit Kumar, Ranjan Dwivedi and P.P. Singh for the appear-
G ing parties.
~
The Judgment of the Court was delivered by

KHALID, J. These appeals are directed against the Judgment of
a Division Bench of Patna High Court in Misc. case No. 356 of 1985.
H Appeal No. 871 of 1986 is by the State of Bihar. Appeal No. 916
STATE OF BIHAR v. KRIPALU SHANKAR [KHALID, J.] 5

jointly by Srideo Mishra, Judicial Commissioner, Ranchi (at the rele-
vant time, Secretary-cum-Legal Remembrancer, Department of Law, A
Government of Bihar, Patna) and Mrs. Radha Singh, Commissioner,
Ranchi Division, Ranchi (at the relevant time Additinnal Irrigation
Commissioner., Patna), Appeal No. 933 by Subh Chandra, Jha, Public
Relation Officer, Irrigation Department, Government of Bihar, Patna
and Appeal No. 1178 by Birkeshwar Prasad Singh, now Professor and B
Head of Department Political Science, Magadh University (Member,
Bihar Public Service Commission, Patna at the relevant time). The
appellants have been convicted by the High Court for contempt of its
order and have been sentenced to a fme of Rs.50 in default to suffer
- simple imprisonment for two weeks. The High Court had issued con-
tempt notice against some others also. Those notices Were discharged
against them. C
The background facts necessary can be now stated in brief as
follows:
In the Irrigation Department of the State of Bihar, there existed
a post of Public Officer. This post became vacant some time in 1979. D
y One Arnn Kumar Verma was appointed to that post for six months. At
that time one Kripalu Shanker was discharging the functions of Public
Relation Officer. He laid claim to that post. He did not succeed. The
Secretary to the Department did not accede to his request. Therefore,
he filed C.W.J.C. No. 3632 of 1979. When the case came up for hear-
ing, it was represented on behalf of the State that Shri Verma was E
_,,,.. ( appointed only on ad hoc basis for a period of six months and that after
.._ the expiry of six months, the matter would be referred to the Public
Service Commission for consideration and at that stage the case of
Kripalu Shankar also will be considered. It is submitted that on this
-r assurance by the State, the petition was allowed to be withdrawn as per
order dated 19 .12.1979. It appears that this assurance was not res- F
pected, no reference was made to the Public Service Commission for
regular appointment and the matter was 'kept in abeyance for a long
time. It is stated that in April, 1983, by which time Dr. Jagannath
Mishra had become Chief Minister, the State Government appointed
Subh Chandra Jha as P.R.O. again on ad hoc basis. This gave rise to
~ the filing of petition no. 1534 of 1983 which was disposed of on 4.5.83. G
• It was contended that this appointment was made without any
advertisement and without consultation with the Public Service
Commission. The learned Advocate General informed the Court when
the matter came up for hearing that the appointment of Jha was only
ad hoc giving an impression that regular appointment would be made
after the expiry of six months. On this representation the following H
order was passed by the Court:
6 SUPREME COURT REPORTS (1987] 3 S.C.R.

"In the circumstances we direct that the post of Public
A Relations Officer in the Irrigation Department on which
respondent 3 has been appointed on ad hoc basis should be
filled up in a regular way. In case the appointment is not
made within the period of six months, the ad hoc appoint·
ment shall stand terminated. We further direct that the fact
B that the respondent No. 3 has worked on the post on ad hoc
basis will not be taken to be a qualification for the purpose
of any appointment through regular method on the post of
Public Relations Officer."
The six months' period, according to the above order, was to
expire on 17 .10.1983. The case of the State is that the Irrigation
C Department had as early as 4.4.1983 written to the Public Service
Commission to give concurrenc" to the appointment of Shri Jha,
since his post was an ex-cadre post and since he was selected by a
Selection Committee. Concurrence was given on 2.4.85. The Govern·
ment thereafter examined the matter in consultation with the Per·
sonnel (Administrative) Reforms Department, with reference to the
D provisions of the Rules governing reservations. The Government took
a decision to send a requisition to the Bihar Public Service Commis·
sion for advertising the post. The Commission finally advertised the
post on 12.5.1985, setting out the eligibility and criterion for selection.
Another Writ Petition was filed in the High Court as C.W.J.C.
E No. 2354/85 with the allegations that the advertisement was specially
drafted to suit only Subh Chandra Jha. The matter was listed for
admission on 13.6.1985. During the hearing of this petition the High
Court felt on going through the records including the notes file
summoned for production by the Court that its direction in C.W.J.C.
No. 1534/83 was disregarded and, therefore, rule was issued upon the
F respondents to show cause why they should not be punished for con·
tempt of the Court for ignoring its order dated 4.5.1983, in the above
mentioned writ petition.
The State of Bihar and the Commissioner-cum-Secretary, Irriga·
tion Department who were respondent nos. 1 & 2 before the High
Court expressed regret but at the same time contended that no con-
tempt had been committed by them for the reason that expression of
views in the notings made on the files whether they were right or
wrong did not amount to contempt of court and that no order was
passed appointing Subh Chandra Jha after 17.10.1983 to invite any
contempt action. The third respondent also pleaded similarly and
H expressed regret for any omission on his part. The Bihar Service
Commission and its Executive Officer stated that they had not
STATE OF BIHAR v. KRIPALU SHANKAR (KHALID, J.] 7

--\ committed any contempt, that Subh Chandra Jha's appointment from
A
18.10.1983 should be treated as a fresh appointment, that they did not
know about the order passed in petition no. 1534 of 1983, that though
concurrence was given, it was withdrawn when the correct facts were
made known to them and that the withdrawal of the concurrence was
duly communicated. The other respondents also adopted similar stand
in the returns filed by the end. B
,> I
Arguments in the contempt matter were heard for some time,
4 and they were concluded on 12.8.1985 and the case was posted for
Judgment. The Court went through the Government files and the files

- of the Bihar Public Service Commission. From the noting in the file,
the High Court discovered that Mrs. Radha Singh, the then Additional
Irrigation Commissioner and Birkeshwar Prasad Singh, Member Bihar c
,(_ Public Service Commission and Sanjeevan Sharma, Section Officer,
Bihar Public Service Commission, had also a part in the matter.
Notices were, therefore, directed to be issued to them as well. They
appeared and were heard on 25. 9. 1985.
The High Court considered the question of contempt on the D
\, following facts, which according tO it were undisputed:
(i) The ad hoc appointment of S.C. Jha must be terminated on
17 .10.1983 as per its order.
(ii) He was still working as P.R.O. with the acquiescence of the

--
concerned officers. E
~· (iii) Concurrence of the Public Servic Commission was sought,
for his fresh ad hoc appointment.
(iv) The Public Service Commissioner gave concurrence to the
--('
ad hoc appointment from October, 1983, by its order in
May, 1985. F
The High Court expressed itself, of what it felt about the dis-
obedience of its order in para 4 of the Judgment as follows:
''The State Government has ignored the order of the High
Court. It had, therefore, to be made party. The Irrigation
Commissioner-cum-Secretary is responsible for every act G
of his Department. It was, therefore, ·but natural that the
proceeding should be drawn up against him also. Shrideo
Mishra, Legal Remembrancer was proceeded against, as he
advised the State Government on 10.10.1983 to seek con-
currence from the Commission in the fresh ad hoc appoint-
ment of Subh Chandra Jha knowing full well the dictate of H
8 SUPREME COURT REPORTS [1987] J S.C.R.
-;--.
A this Court that services of Subh Chandra Jha must be I

terminated after the expirty of six months. Incidentally, it
may be stated once again that the six months period had
expired on 17.10.1983. The Public Service Commission and
the Special Executive Officer thereof have been proceeded
against for granting concurrence to the Ad hoc appoint-
B ment of Subh Chandra Jha. Subh Chandra Jha himself has '
been proceeded against for master minding the whole ~
affair. Proceeding is against him too on that score. The
-·~.
proceeding was initiated against A.U. Sharma on the foot-
ing that he was the Irrigation Commissioner in October,

c
1983 when the service of Subh Chandra Jha had to be
terminated. That is how the contemners have been pro- -
ceeded against."
_);._
The High Court found the officers guilty for the reasons given
below in Paragraph 22 of the Judgment, which we read so that the
approach of the High Court could be properly appreciated.
D "It is necessary to consider the submission urged by
learned Advocate-General on behalf of the officers of the '{
State and the public service commission. The General sub-
mission was, that notings did not represent the concluded
decision of the Government, and therefore, the officers
were not liable for contempt of court. The proposition
E advanced by learned Advocate General is rather too wide.
A Government file is not an individual's private property. It
is public property. The opinions expressea therein are
l ......
liable to reduce the credibility and the binding nature of the '
orders passed by the High Court, and that would amount to
denigration of the State Judiciary. No officer has the right )-
F to abuse the High Court or to ignore the orders passed by
the High Court. I do not for a moment contend that for
every noting in the file contrary to the view taken by the
High Court will amount to contempt of court. It will
depend upon the nature of the view noted in the file and
whether the nothings are intended to set the High Court's
G order at nought maliciously. In the present case, the order
of the High Court was explicit. The Advocate General had -!,
advised explicitly that taking any steps to appoint Subh
Chandra Jha ad hoc would amount to contempt of court
and yet the officers were busy trying to find out how to
ignore the High Court order. When the High Court's direc-
H tion was to make the regular appofotment through the

..
STATE OF BIHAR v. KRIPALU SHANKAR [KHALID, l.] 9

B.P.S.C. where was the occasion for seeking concurrence A
of ad hoc appointment of Subh Chandra Jha. The whole
file gives the impression that the officers in the state were
not reconciled to the orders passed by the High Court. I
am, therefore, unable to hold that some of the officers were
not liable for contempt of court."
B
After considering the factual matrix before the Court, the Court
held that there was no disobedience of its order by the Government
and that the Government had taken a decision not to continue the ad
hoc appointment but observed as follows:
"The State of Bihar as a jurisdic person has certainly not
committed contempt. Because their Chief Minister Shri
Chandresekhar Singh wrote on 8.1.1984 that the High
c
Court order must be obeyed. On 10.3.1984, the Chief Sec-
retary noted that Shri Jha should not be granted ad hoc
appointment ...... the State of Bihar therefore cannot be
held to be guilty of contempt of this Hon'ble Court ...... "
D
After this finding, the High Court held some of the officers of the
Government guilty solely on the basis of the views expressed by them
in the files, which were not, in fact, accepted by the Government and
which were only at the stage of suggestions and views. Shri K.K.
Venugopal, the learned counsel for the State contended that it would
be unsafe to initiate action in contempt merely on the strength of
E
notings by officials on the files, expressing their views and to do so
would imperil the working of various departments in a Government in
a democracy and would have far reaching consequences. Some limes a
view expressed by an officer may be incorrect. The view so expressed
passes through various hands and gets translated into action only at the
ultimate stage. The views so expressed are only for internal use. Such
F
views may indicate the line of thinking of a particular officer. Until the
views so expressed culminate into an executable order, the question of
disobedience of Court's order does not arise. Though the State
Government have been found not guilty, the State has filed the appeal
to protect its officers from independent and fearless expression of
opinion and to see that the order under appeal does not affect the
G
proper functioning of the Government.
It cannot be disputed that the appeal raises an important ques-
tion of law bearing upon tile proper functioning of a democratic
Government. A Government functions by taking decisions on the
strength of views and suggestions expressed by the various officers at
different levels, ultimately getting finality at the hands of the Minister H

-.
10 SUPREME COURT REPORTS [1987] 3 S.C.R.

concerned. Till then, conflicting opinions, views and suggestions
A would have emanated from various officers at the lower level. There >-
should not be any fetter on the fearless and independent expression of
opinions by officers on matters coming before them through the files.
This is so even when they consider orders of courts. Officers of the
Government are often times confronted with orders of courts, impossi-
B ble of immediate compliance for various reasons. They may find it
difficult to meekly submit to such orders. On such occasions they will
necessarily have to note in the files, the reasons why the orders cannot ~
be complied with and also indicate that the courts would not have
passed these orders if full facts were placed before them. The expres- ~
sion of opinion by the officers in the internal files are for the use of the
department and not for outside exposure or for publicity. To find the --
C officers guilty for expressing their independent opinion, even against
orders of courts in deserving cases, would cause impediments in the
smooth working and functioning of the Government. These internal ~
notings, in fact, are privileged documents. Notings made by the offi-
cers in the files cannot, in our view, be made the basis of contempt
0 action against each such officer who makes the notings. If the ultimate
action does not constitute contempt, the intermediary suggestions and
views expressed in the notings, which may sometimes even amount '/
ex-facie disobedience of the courts orders, will nof amount to con-
tempt of court. These notings are not meant for publication.
In our considered view the internal notes file of the Government,
E maintained according to the rules of business, is a privilege document.
If the Government claims privilege or quasi-privilege regarding the
notes file we will not be justified in rejecting the claim outright. In this
case, the notes file was brought to the Court not voluntarily by the
Government. It was summoned for by the Court. The Court can
always look into it. The right of the Court to look into any files, can
F never be denied. The contents of the notes file brought to Court got
communicated to the Court because the Court looks into it. It would
be dangerous to find an action for contempt, for the views expressed
in the notes file, on the discovery of unpleasant or unsavoury notes, on
a perusal of the notes file by the Court, after getting them summoned.
This would impair the independent functioning of the civil service
G essential to democracy. This would cause impediments in the fearless
expression of opinion by the officers of the Government. The notings 'i
on files differ from officer to officer. It may well be that the notes
made by a particular officer, in some cases, technically speaking is i,1
disobedience in an order of the Comt or may be in violation of such
order but a more experienced officer sitting above him can always
H correct him. To rely upon the notings in a file for the purpose of initiat-
STATE OF BIHAR v. KRIPALU SHANKAR [KHALID, !.] 11

ing contempt, in our view, therefore, would be to put the functioning A
of the Government out of gear. We must guard against being over
sensitive, when we come across, objectionable notings made by offi-
cers, sometimes out of inexperience, somtimes out of over zealousness
and somtimes out of ignorance of the nuances of the question of law
involved.
Now, the functioning of Government in a State is governed by · B
). Article 166 of the Constitution, which lays down that there shall be a
council of ministers with the Chief Minister at the head, to aid and
advise the Governor in the exercise of his functions except where he is
required to exercise his functions under the Constitution, in his discre-

- tion. Article 166 provides for the conduct of Government business. It
is useful to quote this Article:
"166. (1) All executive action of the Government of a
C

State shall be expressed to be taken in the name of the
Governor.
(2) Orders and other instruments made and executed
in the name of the Governor shall be authenticated in such D
manner as may be specified in rules to be made by the
Governor, and the validity of an order or instrument which
is so authenticated shall not be called in question on the
ground that it is not an order or instrument made or
executed by the Governor. ,

-
E
(3) The Governor shall make rules for the more con-
venient transaction of the business of the Government of
the State and for the allocation among Ministers of the said
business in so far as it is not business with respect to which
the Governor is by or under this Constitution required to
act in his discretion." F
Articles 166(1) requires that all executive action of the State
Government shall be expressed to be taken in the name of the Gover-
nor. This clause relates to cases where the executive action has to be
expressed in the shape of a formal order or notification. It prescribes
the mode in which an executive action has to be expressed. Noting by
an official in the departmental file will not, therefore, come within this G
Article nor even noting by a Minister. Every executive decision need
not be as laid down under Article 166(1) but when it takes the form of
an order it has to comply with Article 166(1). Article 166(2) states that
orders a.nd other instruments made and executed under Article 166(1),
shall be authenticated in the manner prescribed. While clause (1) H
relates to the mode of expression, clause (2) Jays down the manner in
12 SUPREME COURT REPORTS [1987] 3 S.C.R.

A which the order is to be authenticated and clause (3) relates to the
making of the rules by the Governor for the more convenient trans-
action of the business of the Government. A study of this Article,
therefore, makes it clear that the notiilgs in a file get culminated into
an order affecting right of parties only when it reaches the head of the
department and is expressed in the name of the Governor, authenti-
B cated in the manner provided in Article 166(2).

Viewed in this light, can it be said that what is contained in a
nores file can ever be made the basis of an action either in contempt .ir
in defamation. The notings in a notes file do not have behind them the
sanction of law as an effective order. It is only an expression of a
c feeling by the concerned officer on the subject under review. To
examine whether contempt is committed or not, what has to be looked
into is the ultimate order. A mere expression of a view in notes file
cannot be the sole basis for action in contempt. Business of a State is
not done by a single officer. It involves a complicated process. In a
democratic set up it is conducted through the agency of a large number
D of officers. That being so, the noting by one officer, will not afford a
valid ground to initiate action in contempt. We have thus no hesitation
to hold that the expression of opinion in notes file at different levels by
concerned officers will not constitute criminal contempt. It woulct not,
in our view, constitute civil contempt either for the same reason as
above since mere expression of a view or suggestion will not bring it
E within the vice of sub-section (c) of Section 2 of the Contempt of
Courts Act, 1971, which defines civil contempt. Expression of a view is
only a part of the thinking process preceding Government action.

In the case of Bachhittar Singh v. The State of Punjab, [1962]
Suppl. 3 SCR 713 a Constitution Bench of this Court had to consider
F the effect of an order passed by a Minister on a file, which order was
not communicated. This Court, relying upon Article 166(1) of the
Constitution, held that the order of the Revenue Minister, PEPSU
could not amount to an order by the State Government unless it was
expressed in the name of Rajpramukh as required by the said Article
and was then communicated to the party concerned. This is how this
G Court dealt with the effect of the noting by a Minister on the file:

"The question, therefore, is whether he did in fact make
such an order. Merely writing something on the file does
not amount to an order. Before something amounts to an
order of the State Government two things are necessary.
H The order has to be expressed in the name of the Governor
STATE OF BIHAR v. KRIPALU SHANKAR (KHALID, J.) 13

..( as required by clause (1) of Article 166 and then if has to be A
communicated. As already indicated, no formal order
modifying the decision of the Revenue Secretary was ever
made. Until such an order is drawn up the State Govern-
ment callnot, in our opinion, be regarded as bound by what
was stated in the file. As long as the matter rested with him
the Revenue Minister could well score out his remarks or B
minutes on the file and write fresh ones."
_,l
This Court observed in this Judgment that business of State is a
:I complicated one and has necessarily to be conducted through the
agency of a large number of official and authorities. Before action is
taken by the authority concerned in the name of the Rajpramukh c
which formality 1s a Constitutional necessity, nothing done would
amount to an order creating rights or casting liabilities u11 third parties.
i.. It is possible, observed this Court, that after expressing one opinion
about a particular matter at a particular stage a Minister or Council of
Ministers may express quite a different opinion which may be opposed
to the earlier opinion. In such cases, which of the two opinions can be D
regarded as the order of the State Government. It was held that an
opinion becomes a decision of the Government only when it must be
r communicated to the person concerned and that this is the essence of
the matter. We seek support from these observations for our purpose
that notings in a notes file, not only of officers but even that of a

-
Minister will not constitute an order to affect others unless it is done in E
accordance with Article 166(1) and (2) and communicated to the
person concerned.
-~
In England, absolute privilege is given to statements made by
one officer of a State to another and such statements are protected in
--c the context of law of defamation. Section 123 of the Evidence Act F
deals with privilege. We have already stated that State communica-
tions or acts of State in Public interest, enjoy privilege and if that be
so, disclosure in such communications made to the court will not con-
stitute either contempt or defamation. In any case such internal com-
munications en joy quasi-privilege and a disclosure in such communica-
lions cannot be made the basis of an action in contempt. G

We have seen how the High Court approached the whole ques-
tion from paragraph 22 extracted early in the Judgment.

It is clear that the High Court based its conclusion purely on the
notings in the file. The High Court felt that the officers of the Govern- H
14 SUPREME COURT REPORTS [1987] 3 S.C.R.

ment did not like the orders passed by it and this, according to the
A
High Court, was evident from the files before it. The High Court
summed up its conclusion as follows in paragraph 24 of the Judgment:

"To sum up, contempt of this Court has been committed by
Shri Deo Mishra, Legal Remembrancer, Mrs. Radha
B Sinha, l.A.S. then working as Additional Commissioner,
Irrigation Department and now ·working as Additional
Finance Commissioner, Dr. Birkeshwar Prasad Singh, San-
jeewan Sharma and Subh Chandra Jha and I convict them
accordingly. In regard to sentence, I am clearly of the view
that there was motivation for it. The hand of the moving
c spirit has, however, remained concealed. It appears that
the feeling amongst high officers of this state is that the
High Court will not punish them for contempt of the High
-
Court, as they are high officers and that all that the High .J._
Court will do in case of contempt of court is to give lectures
and at times rant at them. To remove this misconception it
D is essential to impose upon them a fine of Rs.50 (Rupees
fifty) each on all the five persons mentioned above, in
default to suffer simple imprisonment for two weeks. The
rule issued against J.C. Kundra, A.K.M. Nassan. A.U.
Sharma and Arjun Prasad is discharged."

E We see that the High Court felt that there was an attempt on the
part of the officers to disobey its orders. The officers had tendered
apology. This was not accepted. We are concerned more than anyone ....
in upholding the dignity and prestige of the High Court, but we have a
duty at the same time to lay down the law correctly. We feel that the
f
conviction entered by the High Court purely on the basis of the notes
F file cannot be justified. ··)--.

The High Court was under the impression that all the officers
acted in unison to help the 5th respondent. We now deal with his case
separately. He is described by the High Court as the Kingpin of the
whole drama and according to the High Court everbody concerned
G acted for his benefit. There is a veiled suggestion that he would not
have achieved what he wanted except with the help of political forces
and that there is an un-seen hand behind what he achieved. He was
found guilty of abetting.the contempt.
According to him he has been made a scape-goat, that his is an
unfortunate case of a journalist, appointed as Public Relation Officer
fl on ad-hoc basis for six months as recommended by a selection commit-
STATE OF BIHAR v. KRIPALU SHANKAR [KHALID, J.] 15

tee at an interview held along with seven other candidates. He joined
_) service after such a selection on 18-4-1983. As per the order of the
A
High Court, the period of six months for making the regular appoint-
ment to his post was to expire on 17-10-1983. Long before this date,
the Irrigation Department had written to the Public Service Commis-
sion stating that the post held by the appellant was an ex-cadre post
and that concurrence may be accorded for his appointment. This was B
an internal letter. The Government sent a requisition to the Public
/ Service Commission for advertising the post on 10-8-1984. The Com-
mission ultimately made the publication on 12-5-1985 stating the eligi-

- ' bility and criteria for selection. It was this publication that promoted
the filing of the writ petition in question in which the order that gave
rise to the contempt proceeding was passed. Regular appointment
pursuant to the advertisement was stayed. The appellant thus con· c
tinued at the post.
.l
According to him he has not disregarded the order of the High
Court. The Bihar Public Service Commission gave concurrence for his
appointment for six months. The post of P.R.O. being an ex-cadre
D
post since its creation in 1955, the post could not be filled up by giving
promotion to anyone working in the department. It was constituted to
..,. interview candidates and to recommend a suitable person. The appel-
lant continues to function on the strength of the orders passed· in his
favour and he cannot be held to have committed contemptof the High
Court's order. He has stated that he had no notice in the writ petition
filed by Kripalu Shankar or the writ petition from which the present E
...-.t contempt arise. Though he was made a party no notice was ever issued
to him and no direction was given to him by the High Court. Accord·
ing to him, apart from a general observation that he abetted in dis-
regarding the order of the High Court nothing specific has been
-< attributed to him. His unqualified apology was also not accepted by
the High Court. He also relies upon the fact that he was not paid salary F
from 18-10-1983 to date in re-inforcement of his submission that he has
not committed any contempt.
With respect to the learned Judges, we find it difficult to agree
wholly with them regarding the finding that the appellant was guilty of
contempt. We do not have sufficient materials before us to conclude G
that the appellant exercised political clout to further his interest in
'r utter disregard of the orders of the Court. Although it may be said that
the conduct of the appellant is in some measure suspect, we do not find
sufficient justification to enter a finding that he is guilty of contempt
and that he acted in utter disregard of the High Court's order. It is
useful to remember that apart from the notes file, there is no indepen- H

...
16 SUPREME COURT REPORTS [1987] 3 S.C.R.

dent material before us to held that the appellant had committed con-
A
tempt. The Government pleader and the Advocate General had
clearly advised the Government to act in accordance with the direc-
tions given by the High Court. The Minister who is the ultimate
authority also acted in obedience to the orders of the High Court. That
being so, we find it difficult to agree with the finding that he is guilty of
B criminal contempt. The High Court felt that his was not a fit case to
accept the unqualified apology tendered. However, we find, that on
materials placed before us, it is not proved beyond doubt that he had
committed contempt. We would, therefore, give him benefit of doubt
and purge him of the contempt found against him.

c
We would like to outline the general principle on which confi-
dentiality of State documents should be protected. The general princi-
ple is that if a person is involved in litigation, the Courts can order him
-
to produce all the documents he has which relate to the issues in the
case. Even if they are confidential, the Court can direct them to be
produced when the party in possession does not produce them, for the
D other side to see or at any rate for the Court to see. When the Court
directs production of those documents there is an implied understand-
ing that they will not be used for any other purpose. The production of
these documents in ordinary cases is imposed with a limitation that the
side for whose purpose documents are summoned by the Court cannot
use them for any purpose other than the one relating to the case
E involved.

Miss Harman's case. Home office v. Harman, [1981] 2 WLR 310
may give some assistance 10r this aspect of our discussion. The facts
are as follows:
··~ -
p Miss Harman, a Solicitor, acted for a criminal, Michael Williams
who was in prison serving a long sentence for robbery of the bank. He
complained that he was subjected to cruel and unusual punishments
while in prison contrary to the Bill of Rights and accordingly brought
an action for damages against the Home Office. Miss Harman acted
for him as a legal aid counsel. Miss Harman got an order for discovery
G against the Home Office. The Home Office did not raise any objection
regarding the production of the documents. However, it objected the
use of the documents by the Group, called. "The National Council for
Civil Liberties". Accordingly the documents were brought to Court
and they were read out in open Court. Miss Harman passed the bun-
dles of the documents to a journalist and a write up appeared in 'The
H Guardian' which was highly critical of the Home Office. The Home
STATE OF BIHAR v. KRIPALU SHANKAR [KHALID. J.] 17

Office took proceedings against Miss Harman for contempt of Court. A
She was held guilty for contempt by the High Court and was confirmed
by the Court of Appeal°and by the House of Lords. In the Court of
Appeal, Lord Denning, despite his liberal views, while upholding the
right of the Court to read documents relating to cases while conceding
also the liberty to those present in Court to listen wben those docu-
ments were read and the reporter to take down what was read, did not B
,_.)- extend to the press a right to any further use of the confidential docu-
ments or any further dissemination of their contents without the con-
l sent of the owner. It is of no use to plead the freedom of the press, he
said, that freedom is itself subject to restriction. Public confidential

- documents, it was said, should be kept ;:onfidential in the public in-
terest and should not be exposed to the ravages of outsiders. When the
House of Lords' decision in Harman v. Secretary of State for the Home
c
J..._ Department, [1983] AC 280 upholding the Court of Appeals was re-
ndered, there was great hue and cry that the ruling meant "a black day
for press freedom .... ". Even so, Lord Denning regretted that the
Court ever ordered disclosure of the documents and observed that the
"legal milestone will have to be taken up and cet back a bit." D
y In Bachittar Singh's case (supra), privilege was claimed regard-
ing the production of which was sought, embodied the minutes of the
meetings of the Council of Ministers showing the advice which the
Council ultimately give to the Rajpramukh. This Court held that these
documents fell within the category of documents relating to the affairs
E
of State within the meaning of Section 123 of the Evidence Act and
--1 were protected under the said Section. Though the ratio of this deci-
sion outlines the conservative view in the law relating to privilege, we
are not unmindful of the fact that the doctrine of privilege received a
shock treatment against the State at the hands of this Court in the
Judges' case, S.P. Gupta & Ors. etc. etc. v. Union of India and others
F
etc. etc., [1982] 2 SCR 365. May we say that the legal milestone in
Gupta's case, also needs a retreat, a bit.
Before parting with this case we would like to observe the need
for restraint and care in dealing with the internal files of the Govern-
ment. We have already indicated its privileged position and limited
y areas where exposure is permissible of the notings in the file. This is G
not to say that absolute privilege can be claimed of its exposure and
protection from the view of Courts. But what is to be borne in mind is
that the notings in the departmental files by the hierarchy of officials
are meant for the independent discharge of official duties and not for
exposure outside. In a democracy, it is absolutely necessary that its
steel frame in the form of civil service is permitted to express itself H

,,_.-
-
18 SUPREME COURT REPORTS [1987) 3 S.C.R.

A freely uninfluenced by extraneous considerations. It might well be that
even orders of Court come in for adverse remarks by officers dealing
with them, confronted with difficult situations to straight away obey
such orders. Notings made on such occasions are only for the benefit of
the officers concerned. When a subordinate official commits a mistake
higher official will always correct it. It is necessary for Courts also to
B
view such notings in the proper perspective. In this case, the Court,
after looking into the notes file could have passed appropriate orders
giving relief to the affected party and expressing its displeasure at the
manner in which its order was implemented instead of initiating action

c
on the notings made in the file. That way the Court would have
enhanced its prestige. ' -
It will not serve either the healthy working of the civil service,
public interest or democratic norms to proceed in contempt against
officials solely on the basis of minutes in the internal files, notings
which might even be unsavoury or even derogatory to an order of the
D Court, but which get ultimately corrected by the head of the depart-
ment, ending with an order under Article 166(1) and (2) in the name of
the Governor in the proper form. We are conscious of the fact that the
learned Judges felt that there was a deliberate attempt to act against
their order. We are not unmindful of the indignation shown by them at
the notings in the file. The only reason why we feel constrained to
disagree with the High Court's order is our anxiety to delineate the
E limits of judicial power while dealing with files of the Government and
also of the Public Servi.ce Commission, a high Constitutional autho-
rity. It is necessary to have mutual respect among the various wings of
the administration, in the process of disposal of justice.

We allow these appeals and discharge the contempt orders
F passed by the High Court with utmost reluctance in view of the far
reaching consequences that would flow if the judgment was allowed to
stand. We are happy that the appellants have tendered their regret and
apology to the High Court and have reiterated their regret in this
Court also.
G H.L.C. Appeals allowed.