IN THE HON’BLE SUPREME

COURT OF INDIA
DR. D.C. SAXENA
…….PETITIONER

v/s

HON'BLE THE CHIEF JUSTICE OF INDIA .……..RESPONDENT

Citation:[1996 SCC (7) 216, JT 1996 (6) 529]

DATE OF JUDGMENT: 19/07/1997

Adjudged By:
Justice K. RAMASWAMY
 RELEVANT FACTS AND BACKGROUND
The petitioner had initiated public interest litigation under Article 32 of the Constitution
to direct Sri. P.V. Narsimha Rao, then President of Indian National Congress and former
Prime Minister of India to pay a sum of Rs.8.29 Lakhs which was due to the union of India
for use of Indian Air Force aircraft or helicopters.

The alleged contemnor appeared in person when the writ petition was called out on On
7th August, 1995, the writ petition was listed before a Bench comprised of the Chief
Justice of India A.M. Ahamad, Justice S.C. Sen and Justice K.S. Paripoornan. The
Solicitor General placed the original record before the Court and, after perusing the same
and hearing the alleged contemnor, the writ petition was summarily dismissed.

The alleged contemnor filed a second writ petition (No.D17209/95) making the Chief
Justice of India the respondent thereto. In this petition he contented that his first writ
petition was dismissed without giving reasons and for causing fabrication of court
proceeding for not mentioning the fact of appearance of the Solicitor General. Court
intends, along with prayer several averments in the second writ petition are scandalous .
The second writ petition also, therefore, dismissed. Later, Supreme Court issued a Show
Cause Notice against petitioner for contempt of court because several allegations made
are reckless attack on Chief Justice of India personally. The Petitioner was given an
opportunity to rectify his averments made in the petition by the CJI as the petitioner had
himself previously stated that he was willing to change his statements if they are seemed
to be stringent and brash.
Before Modification
ChiefJustice of India, Justice Ahmadi was without
recording reasons for dismissal of the petition
has caused so much for the vaunted adherence to
the twin principles of transparency and
accountability.“
"For willfully and advertently violating the
fundamental rights of not only the petitioner as an
individual, but that of the people of India, who
are ultimately sovereign, as stated in the
Preamble to the Constitution, has not Justice
Ahmadi forfeited any legal protection, even it if
were available to him?"
Justice Ahmadi's utmost reluctance to perform
his fundamental duties and constitutional
obligations was apparent. when after failing to
browbeat the petitioner, he stated that it would
be taken up at the end of the cause list.“
After Modification
That Justice Ahmadi ultimately dismissed the
petition, observing that the Government of
India was capable of realizing the dues from
Shri Rao and without recording the reasons for
dismissing the petition, for which lapse in
pursuance of the twin principles of
transparency and accountability.“
"Forviolating the fundamental rights of not
only the petitioner, as an individual, but also
that of the people of India, who are ultimately
sovereign, as stated in the preamble to the
Constitution, has not Justice Ahmadi sent
wrong signals to the entire judiciary, of
which he is the head?“
"The petitioner discerned reluctance on the
part of the presiding judge to allow the relief
claimed, which was in public interest, and
actuated by the desire to "preserve and
protect public property," without any
personal malice.“
"Forcausing fabrication of court proceedings of 7
August, 1995, and not mentioning the fact of
appearance of the Solicitor General, would Justice
Ahmadi not be liable to prosecution under the
relevant provisions of the Indian Penal Code, in
consonance with the time honored maxim, "Be you
ever so high, the law is above you?“
"Forallowing his son who is a practicing in the
Supreme Court, to stay with him in his official
residence, and presumably in the supreme Court, to
stay with him in his official residence, and
presumably misusing official facilities and prestige
of office of chief Justice of India, is not Justice
Ahmadi liable to be prosecuted under the
prevention of corruption act, in view of the ratio
decidendi of Veer swami's case?“
 "For deliberate and willful failure to perform his
fundamental duties and stultifying their performance
by the petitioner, should not Justice Ahmadi be
stripped of his citizenship, because duties alone can
confer the corresponding legal and constitutional
rights?“
"For inaccurate recording of the court
proceedings of 7 August, 1995, and not
mentioning even the fact of appearance of the
Solicitor General for the respondents, what
responsibility would ensue on the presiding
judge, who dictated them?"
He hasn’t changed anything in his preliminary
submission, but in support attached some
newspaper articles published in "The Times of
India“. He states that "It is widely talked in
legal circles that apart from being favored in
appointment on local commissions, Justice
Ahmadi's son are very often assigned
government briefs“
"Forfailure to perform his fundamental duties
and impeding their performance by the
petitioner, should not Justice Ahmadi be
regarded as accountable to the people of
India, because duties alone can confer the
corresponding legal and constitutional rights?“
"IsJustice Ahmadi not liable to pay from his
pocket not only the legitimate costs incurred
by the petitioner in C.W.P. No.432 of 1995 and
the present petition, but also the loss caused to
the public exchequer by non-payment of dues
with 18% interest by Shri P.V.N. Rao?“
"Can Justice Ahmadi be allowed to take
shelter behind the cloak of judicial immunity,
in the facts and circumstances of the instant
case, particularly when unlike the President of
India, who cannot be impleaded in civil or
criminal proceedings“
"..........excluding any Judge who owes his
elevation to the apex Court to Justice Ahmadi.
Further, during its pendency. Justice Ahmadi
may be advised to proceed on leave, so that
he may not directly or indirectly influence
any of the Judges hearing the matter." his
term of office," he enjoys no such
constitutional protection?
"Who would be liable to reimburse the
legitimate costs incurred by the petitioner
in C.W.P. No.432 of 1995, and the present
petition, and the huge loss caused to the
public exchequer, because of persistent
default in paying them, by Shri P.V.
Narasimha Rao, with 18% interest?“
"When under the Constitution, judges of
superior courts do not, unlike the President
of India, enjoy total immunity during their
term of office, can the presiding judge be
allowed to make such a claim for wrong-
doing?“
 "since no person can be a judge in his own
cause, the senior-most judge of the Hon'ble
Court may be permitted to constitute a
constitution bench. Further during its
pendency, Justice Ahmadi may be advised to
proceed on leave, so that he may not
directly or indirectly influence any of the
 Out of the 14 Averments made, the petitioner has modified 9 and the remaining 5 unchanged
averments are as follows:-

1) “It was improper for Justice Ahmadi to hear it".

2) "To this Justice Ahmadi responded that Solicitor General was there to assist the Court, contrary to the
evidence of the court proceedings".

3) “The subsequent course of action by Justice Ahmadi, in dealing with the grouse of the petitioner and
dismissing his petition is totally unjust, unfair, arbitrary and unlawful. It is in flagrant violation of the
mandates of Article 14 of the constitution, which "runs like a golden thread“.

4) “What are the legal consequences of the violation of the sacred oath of office by Justice Ahamad’s” ?

5) The prayer of the 2nd writ petition was stated as below:-

(a) Declare the respondent unfit to hold office as chief Justice of India;

(b) Strip the respondent of his citizenship;

(c) Direct the registration of an F.I.R. against the respondent under the Indian penal Code
for committing forgery and fraud;

(d) Direct the respondent's prosecution under the prevention of corruption Act.

Petitioner has withdrawn (b) and (c) clauses of the prayer unconditionally in his preliminary submission.
The clauses (a) and (d) remain the same in his 2nd writ petition.
 ISSUES;

1) Whether the above-stated conduct of the petitioner

amounts to contempt of Court?

2) Are the Provisions of the Contempt of Courts Act,1971

ultra vires to the Article 19(1)(a) of the Constitution?

3) Is it relevant in a contempt proceeding that the

petitioner did not seek any personal gains for himself
and that he had made the averments for the public good
with no intention to scandalize the court?

4)Whether defense under Sections 4 and 5 of the

Contempt of Courts Act, 1971 is available to the
contemnor?
 ANSWER TO THE ISSUES GIVEN BY THE COURT:
1) The conduct of the petitioner was held to be amounting to Contempt of Court.

2)The provisions of the Contempt of Courts Act, 1971 was not held to be ultra
vires Article 19(1)(a) of the Constitution.
In P.N. Duda vs. P. Shiv Shankar” [AIR 1988 SC 1208]
Court held that any criticism about 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 criticized. Motives to the judges need not be attributed. When
the contempt of court is committed by a litigant, the freedom of expression being
contemptuous becomes punishable under Article 129 (Power of Supreme Court
to punish for contempt) of the Constitution de horse the power under Section 12
(Punishment for contempt of court) of the Act.

3) In this regard, the Court held that it is true that in an indictable offense,
generally mens rea is an essential ingredient and requires to be proved for
convicting the offender but for criminal contempt as defined in Section 2(c) any
act which tends to create disaffection, disbelief in the efficacy of judicial
dispensation or tendency to obstruct the administration of justice or tendency
to lower the authority or majesty of law constitutes criminal contempt.
Thereby, it excludes the proof of Mens rea. What is relevant is that the offending or
affront act produces interference with or tendency to interfere with the course of
justice. The Court, therefore, is required to consider whether the imputations made by
a contemnor are calculated to bring to have the effect of bringing the court into
contempt or casting aspersions on the administration of justice or tends to impede
justice, etc. The Court has to consider the nature of the imputations, the occasion of
making the imputations, and whether the contemnor foresees the possibility of his act.

4)The contemnor seeks to justify his averments under Section 4 of the Act as fair and
accurate report of the judicial proceedings and that, therefore, they are not
contempt. The Contempt of Courts Act are inapplicable to the present case as they
would apply only to the publication of a report of the judicial proceedings fairly and
with accuracy to outside the world. Further, it was held that there is a distinction
between expression in pleading and publication of a report of the judicial proceeding
or order without malice as fair and constructive criticism to the readers. Even in his
modified statement court intends that the averments were made and remained as ex-
facie contumacious. The alleged contemnor had sought to delete some of these
averments and modify some others but had expressed no regret for what he had
already said. Even the modified averments were contumacious, So contemnor
cannot take advantage of sec 5 of the Act as Fair criticism of judicial act not leads
to contempt. Hence, what he has written in the second writ petition is neither a fair
and accurate report of the proceedings of the earlier writ petition nor a fair criticism
thereof.
 DECISION OF THE COURT

Having regard to the gravity of the contumacious statements, the

recklessness with which they are made, the in-temperateness of
their language, the mode of their publication in a writ petition in this
Court, and the alleged Contemnor’s influential position in the
society, the Court held that punishment only in nature of a fine
would not be adequate. A contemnor such as the present must also
undergo imprisonment.

Accordingly, the alleged contemnor was sentenced to undergo

simple imprisonment for three months and to pay a fine of Rs
2,000/-

In default of such payment within three months, the alleged

contemnor shall undergo further simple imprisonment for one month.
 CONCLUSION

The liberty of freedom of speech and expression is not to be

confounded or confused with the license to make unfounded
allegations against any institution including the judiciary.

Constructive public criticism, even if it slightly oversteps its limits, thus

has fruitful play in preserving the democratic health of public institutions.
But liberty of expression should not be a license to violently make a
personal attack on a judge.

The defense of Mens rea, therefore, cannot be taken in the proceedings

for contempt of Court.