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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

CONTEMPT PETITION (CRL.) NO. 11 OF 1990

Dr. Subramanian Swamy                       ……  Petitioner  

   Vs.

Arun Shourie           ……  Respondent

WITH

CONTEMPT   PETITION (CRL.) NO. 12 OF 1990   

JUDGMENT

R.M. LODHA, CJI.  

In the issue of Indian Express of August 13, 1990, an editorial  

was published bearing the caption “If shame had survived”.  The editorial  

reads as under:

“If shame had survived”

The legal opinion that the former Chief Justice of India, Mr.  Y.  V.  Chandrachud,  has  given  on  the  Kuldip  Singh  Commission’s  report  is  a  stunning  indictment.    Succinct,  understated to  the point  of  being deferential,  scrupulously  adhering  to  facts  and  law,  eschewing  completely  the  slightest  attribution  of  any  motive  to  the  Commission,  the  opinion  is  a  model  of  rectitude.   Nothing  in  the  report  survives  it   “evidence”  that  it  was  agreed  would  not  be  pressed relied on as a fulcrum; evidence of the one witness  

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who  was  the  hub  of  the  decisions  wholly  disregarded;  indictments  framed  on  “probable  possibility”,  theories  invented to read meanings into documents and the manifest,  straightforward  explanation  ignored;  the  Commission  itself  as  well  as  the  energetic  prosecutor  himself  declaring one  day that neither had a shred of evidence which cast a doubt  on  Hegde  and  the  very  next  day  declaring  a  conclusion;  refusing to common witnesses for cross-examination on the  pretext that the Commission did not have the power to call  them – this in the face of clear judgments to the contrary;  then invoking  a  section  of  the  Indian  Evidence Act  which  applies to a person making a dying declaration; ignoring the  fact that the man who is said to have been benefited has lost  Rs.55 lakh which he deposited; insinuating – and building an  entire indictment on the insinuation – that  the builder had  fabricated a front, when the actual record shows that he was  doing everything openly and with all the formalities which the  law required; ignoring the fact that the land was to be given  to the builder at three times the cost of acquisition and that  on top of it development charges were to be levied from 4 to  6 times the cost of acquisition; ignoring entirely the fact that  the  land  was  never  transferred  and  that  it  was  not  transferred  solely  because  of  the  then  Chief  Minister’s  insistence that rules be framed under which all such cases  would  be  dealt  with.   It  is  the  longest  possible  list  of  suppresso veri suggesto falsi.

If there had been any sense of honour or shame, a Judge  would  never  have  done  any  of  this.   If  there  were  any  residual sense of honour or shame, the Judge having done  any of it and having been found doing it, would have vacated  his  seat.   But  this  is  India.   Of  1990,  the  Commissioner  Kuldip  Singh  having  perpetrated  such  perversities  will  continue to sit in judgment on the fortunes and reputations of  countless citizens.  He will  continue to do so from nothing  less than the Supreme Court of India itself.

Such is our condition.  And so helpless are we that there is  nothing we can do about such a “Judge”.  Save one thing.  The only way to mitigate the injuries that such persons inflict  on  citizens  is  for  all  of  us  to  thoroughly  examine  the  indictments or certificates they hand out.  Only that exercise  will  show  up  these  indictments  and  certificates  for  the  perversities which they are and only in that way can their  effect  be diluted.   “Who has the  time to  read voluminous  reports,  to  sift  evidence?”   But  if  the  issue  is  important  enough for us to form an opinion on it, it is our duty to find  

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the time to examine such reports,  to examine as well  the  conduct of the commissioners who perpetrate them.”       

2. It  so  happened  that  Justice  Kuldip  Singh,  the  then  sitting  

Judge of the Supreme Court, was appointed as Chairman, Commission of  

Inquiry under the Commissions of Inquiry  Act, 1952 (hereinafter referred  

to as ‘1952 Act’) to probe into alleged acts of omissions and commissions  

by Shri Ramakrishna Hegde, the former Chief Minister of Karnataka.  The  

one man Commission headed by Justice Kuldip Singh submitted its report  

on 22.06.1990.

3. These  two  contempt  matters,  one  by  Dr.  Subramanian  

Swamy1 and  the  other2 suo  motu arise  from the  editorial  published  in  

Indian Express as quoted above.    In the contempt petition filed by Dr.  

Subramanian Swamy on 23.08.1990 under Section 15 of the Contempt of  

Courts Act, 1971 (hereinafter referred to as, “1971 Act”) against the then  

Editor of Indian Express, Mr. Arun Shourie, it is contended that the editorial  

is a scandalous statement in respect of a sitting Judge of the Supreme  

Court of India and the judiciary.  It lowers the authority of this Court as well  

as shakes public confidence in it and amounts to criminal contempt of this  

Court.  It is submitted that unless this Court acts promptly and if necessary,  

1

[Contempt Petition (Crl.) No.11 of 1990 Dr. Subramanian Swamy v. Arun Shourie]  2 [Contempt Petition (Crl.) No.12 of 1990 In the matter of Mr. Arun Shourie]  

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suo motu in the matter, sitting Judges would be helpless and unable to  

defend themselves, and in the process, public confidence in judges and  

the courts would be eroded.      

4. It is pertinent to notice here that the then Chief Justice of India  

obtained opinion of the Attorney General for India in the matter.  The then  

Attorney General Shri Soli Sorabjee in his opinion dated 27.08.1990 noted  

that  the editorial  had,  prima facie,  overstepped the limits of  permissible  

criticism and the law of contempt, as was existing in the country, did not  

provide for truth as defence and, therefore, he opined that an explanation  

was called for and a notice could be issued for that purpose.  In his view,  

the  question  whether  the  contempt  of  a  Commission  or  Commissioner  

appointed under the 1952 Act tantamounts to contempt of the High Court  

or  Supreme Court  of  which  the  Commissioner  is  member  needs  to  be  

authoritatively settled by the Supreme Court in view of the reoccurrence of  

the issue.        

5. On 03.09.1990, the suo motu contempt matter and so also the  

contempt  petition  filed  by  Dr.  Subramanian  Swamy  came  up  for  

consideration before the three Judge Bench of this Court headed by the  

Hon’ble the Chief Justice.  The proceeding of 03.09.1990 reads as under:

“In Re : Arun Shourie and Anr.

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We have seen the editorial in the “Indian Express” of  August  13,  1990.   We  have  obtained  the  opinion  of  the  Attorney General of India in the matter.  We consider that  paragraphs 2 and 3 of the editorial  tend to fall  within the  definition  of  ‘criminal  contempt’  in  Section  2(c)  of  the  Contempt  of  Courts  Act,  1971.   We,  therefore,  direct  that  notice  returnable  on  8th October,  1990  be  issued  to  the  alleged contemners calling upon them to show cause why  proceedings for contempt of this Court under Article 129 of  the  Constitution  should  not  be  initiated  against  them  in  respect of  the offending editorial  published by them.  The  contemners shall  be present in the Court  in person on 8 th  October, 1990.  A copy of the opinion given by the Attorney  General  in  the matter  should accompany the notice to be  issued to the contemners.  They may file their affidavits in  support of their defence on or before 8th October, 1990.

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

CONTEMPT PETITION NO.       OF 1990 :   

Learned Attorney General of India has also drawn our  attention to an issue of the ‘Current’ (August 25-31, 1990)  which contains an Article by M.V. Kamath.  We will consider  that matter separately later on.

Dr. Subramanian Swamy vs. Mr. Arun Shourie:

Issue notice returnable on 8th October, 1990 stating  therein why contempt proceedings should not be initiated.”   

6. Respondent  Arun  Shourie  submitted  his  reply  affidavit  on  

13.10.1990.  We shall refer to his defence and objections at an appropriate  

place little later.  Suffice, however, to note at this stage that in the counter  

affidavit, the respondent prayed that, in view of the sensitive nature of the  

facts, he would choose to refrain from setting out those facts in the affidavit  

but would prefer to put them in the form of a signed statement in a sealed  

cover for the perusal of the Court which may be treated as an integral part  

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of the counter affidavit.   The Court, however, on 04.03.1991 rejected his  

prayer and observed that the procedure suggested by the respondent was  

not an acceptable procedure and was inconsistent with recognized form of  

the pleadings.  The respondent was granted liberty to withdraw the sealed  

cover  from  the  Court.   He  was  given  an  opportunity  to  file  additional  

affidavit.      

7. The  matters  remained  dormant  for  many  years.  On  

25.08.19983, a three Judge Bench directed that these matters be placed  

before a Constitution Bench.

8. This  is  how these matters  have come up for  consideration  

before the Constitution  Bench.   We have heard Mr.  Mohan Parasaran,  

3 These contempt matters relate to comments made by the alleged contemnors against Shri Justice Kuldip  Singh after he had submitted his report as Chairman of the Enquiry Commission set up by the Central   Government.

In Contempt Petition No.9/90 an objection has been raised by Shri D.D. Thakur, the learned senior  counsel  appearing  for  the alleged contemnor that  the petition is not  maintainable since  consent  of  the  Attorney General for India or the Solicitor General for India was not obtained as required by Section 15 of   the Contempt of Courts Act, 1971.  A question arises as to whether in the absence of the consent of the   Attorney  General  or  the  Solicitor  General  suo  moto  proceedings  can  be  initiated  against  the  alleged   contemnor. Shri D.D. Thakur has, however, submitted that since the alleged contempt arose more than one  year back, Section 20 of the Contempt of Courts Act, 1971 would operate as a bar against the initiation of   suo moto proceedings for contempt against the alleged contemnor.

In  Contempt  Petition  No.11  and  12  of  1990  there  is  the  opinion  of  the  Attorney  General  expressing the view   that when a Supreme Court Judge is appointed as a Commissioner in a Commission  of  Enquiry he does not  carry  with him all  the powers  and jurisdiction of  the Supreme Court  and the  functions discharged by him are statutory functions independent of the jurisdiction vested in the Supreme   Court  and,  therefore,  the  alleged contempt  of  a  sitting Judge of  the Supreme Court  in  relation to  the   statutory functions discharged by him as a Commissioner cannot in law be regarded as a contempt of  Supreme Court itself.

The learned counsel for the alleged contemnors have urged that truth can be pleaded as a defence  in contempt proceedings and that the decision of this Court in Perspective Publications (Pvt.) Ltd. & Anr.  vs. State of Maharashtra, (1969) 2 SCR 779 needs re-consideration.  In our opinion, the questions that arise  for consideration in these matters are of general public importance which are required to be considered by a  Constitution Bench. We, therefore, direct that the matters be placed before a Constitution Bench.     

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learned Solicitor General and Mr. Ashok H. Desai, learned senior counsel  

for the respondent.

9. It  may  be  observed  immediately  that  the  learned  Solicitor  

General and learned senior counsel  for the respondent in the course of  

arguments  agreed that  for  exercising the  suo motu power  for  contempt  

under  Article 129 of  the Constitution of  India,  the limitation  provided in  

Section 20 of the 1971 Act has no application.   There is no challenge  

before us about  the legal  position that  there are no implied or  express  

limitations  on  the  inherent  powers  of  the  Supreme  Court  of  India  and,  

therefore, no limitations can be read into Article 129 of the Constitution.

10. The two principal  questions that arise for consideration and  

need our answer are as follows:

(i) When  a  sitting  Supreme  Court  Judge  is  appointed  as  a  

Commissioner by the Central Government under the 1952 Act, does he  

carry with him all  the powers and jurisdiction of the Supreme Court? In  

other words, whether the functions which are discharged by the Supreme  

Court Judge as a Commissioner are purely statutory functions independent  

of the jurisdiction vested in the Supreme Court?      

(ii) Whether  truth  can  be  pleaded  as  defence  in  contempt  

proceedings?

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11. We  shall  take  up  the  second  question  first.  Some  of  the  

common  law  countries  provide  that  truth  could  be  a  defence  if  the  

comment was also for the public benefit. Long back the Privy Council in  

Ambard4 held that reasoned or legitimate criticism of judges or courts is not  

contempt of court. The Privy Council held:

“The path of criticism is a public way; the wrong headed are  permitted to err therein: provided that members of the public  abstain from imputing improper motives to those taking part  in the administration of justice, and are genuinely exercising  a right of criticism, and not acting in malice or attempting to  impair the administration of justice, they are immune. Justice  is not a cloistered virtue: she must be allowed to suffer the  scrutiny and respectful, even though outspoken, comments  of ordinary men.”

12. In Wills5 the High Court of Australia suggested that truth could  

be a defence if the comment was also for the public benefit. It said, “…The  

revelation of truth – at all events when its revelation is for the public benefit  

–  and the making of  a fair  criticism based on fact  do not  amount  to a  

contempt of court though the truth revealed or the criticism made is such  

as to deprive the court or judge of public confidence…”.

13. The  legal  position  with  regard  to  truth  as  a  defence  in  

contempt proceedings is now statutorily settled by Section 13 of the 1971  

Act  (as  substituted  by  Act  6  of  2006).  The  Statement  of  Objects  and  

4 Ambard v. Attorney-General for Trinidad and Tobago; [(1936) AC 322]. 5 Nationwide News Pty. Ltd. v. Wills; [(1992) 177 CLR 1].

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Reasons  for  the  amendment  of  Section  13  by  Act  6  of  2006  read  as  

follows:

“The existing provisions of the Contempt of Courts Act, 1971  have  been  interpreted  in  various  judicial  decisions  to  the  effect that truth cannot be pleaded as a defence to a charge  of contempt of court.

2. The National Commission to Review the Working of the  Constitution  (NCRWC)  has  also  in  its  report,  inter  alia,  recommended that in matters of contempt, it shall be open to  the Court to permit a defence of justification by truth.

3. The Government has been advised that the amendments  to the Contempt of Courts Act, 1971 to provide for the above  provision  would  introduce fairness in  procedure  and meet  the requirements of Article 21 of the Constitution.

4. Section 13 of the Contempt of Courts Act, 1971 provides  certain  circumstances  under  which  contempt  is  not  punishable. It is, therefore, proposed to substitute the said  section, by an amendment.

5.  The  Contempt  of  Courts  (Amendment)  Bill,  2003  was  introduced in the Lok Sabha on the 8th May, 2003 and the  same was referred to the Department-related Parliamentary  Standing Committee on Home Affairs for examination. The  Hon’ble  Committee considered the said Bill  in  its  meeting  held  on  the  2nd  September,  2003.  However,  with  the  dissolution of the 13th Lok Sabha, the Contempt of Courts  (Amendment) Bill, 2003 lapsed. It is proposed to re-introduce  the said Bill with modifications of a drafting nature.”

14. Clause 13(b), now expressly provides that truth can be valid  

defence in contempt proceedings. Section 13, which has two clauses (a)  

and (b), now reads as follows:

“13.  Contempts  not  punishable  in  certain  cases- Notwithstanding anything contained in any law for the time  being in force,—

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(a) no court  shall  impose a sentence under this Act for  a  contempt of court unless it is satisfied that the contempt is of  such  a  nature  that  it  substantially  interferes,  or  tends  substantially  to  interfere  with  the  due  course  of  justice;

(b) the court may permit, in any proceeding for contempt of  court, justification by truth as a valid defence if it is satisfied  that it is in public interest and the request for invoking the  said defence is bona fide.”

15. The Court may now permit truth as a defence if two things are  

satisfied, viz., (i) it is in public interest and (ii) the request for invoking said  

defence is bona fide.

16. A two Judge Bench of this Court in R.K. Jain6 had an occasion  

to consider Section 13 of the 1971 Act, as substituted by Act 6 of 2006. In  

para 39 (page 311 of the report), the Court said:

“……..The  substituted  Section  13 represents  an  important  legislative  recognition  of  one  of  the  fundamentals  of  our  value system i.e.  truth.  The amended section enables the  court to permit justification by truth as a valid defence in any  contempt proceeding if it is satisfied that such defence is in  public interest and the request for invoking the defence is  bona fide. In our view, if a speech or article, editorial, etc.  contains something which appears to be contemptuous and  this  Court  or  the  High  Court  is  called  upon  to  initiate  proceedings under the Act and Articles 129 and 215 of the  Constitution,  the  truth  should  ordinarily  be  allowed  as  a  defence unless the Court finds that it is only a camouflage to  escape the consequences of deliberate or malicious attempt  to  scandalise  the  court  or  is  an  interference  with  the  administration of justice. Since, the petitioner has not even  suggested that what has been mentioned in the editorial is  incorrect or that the respondent has presented a distorted  version of the facts, there is no warrant for discarding the  respondent’s assertion that whatever he has written is based  

6 Indirect Tax practitioners’ Association v. R.K. Jain; [(2010) 8 SCC 281]

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on true facts and the sole object of writing the editorial was  to  enable  the  authorities  concerned  to  take  corrective/remedial measures.”

Thus, the two Judge Bench has held that the amended section enables the  

Court to permit justification by truth as a valid defence in any contempt  

proceedings if it is satisfied that such defence is in public interest and the  

request for invoking the defence is bona fide. We approve the view of the  

two Judge Bench in  R.K. Jain6.  Nothing further needs to be considered  

with regard to second question since the amendment in contempt law has  

effectively rendered this question redundant.  

17. It  is  now  appropriate  to  consider  the  first  question  as  to  

whether  a  sitting  Supreme  Court  Judge  who  is  appointed  as  a  

Commissioner by the Central Government under the 1952 Act  carries with  

him all  the powers  and jurisdiction  of  the Supreme Court.   In  order  to  

answer this question, it is appropriate to refer to relevant provisions of the  

two Acts, namely,  the 1971 Act and the 1952 Act.  1971 Act has been  

enacted by the Parliament to define and limit the powers of certain courts  

in punishing contempts of courts and to regulate their procedure in relation  

thereto. Section 2(a) defines “contempt of court” to mean ‘civil contempt’ or  

‘criminal contempt’.  Civil contempt is defined in Section 2(b) while Section  

2(c) defines criminal contempt.  Omitting the definition of civil contempt, we  

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may reproduce the definition of criminal contempt in the 1971 Act, which  

reads:

“2(c) “criminal contempt” means the publication (whether by  words,  spoken  or  written,  or  by  signs,  or  by  visible  representation, or otherwise) of any matter or the doing of  any other act whatsoever which -  

(i) scandalises or tends to scandalise, or lowers or tends to  lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due  course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends  to  obstruct,  the  administration  of  justice  in  any  other  manner;”

18. The  three  expressions,  “court”  in  clause  (i),  “judicial  

proceeding” in clause (ii)  and “administration of  justice” in clause (iii)  of  

Section 2(c) are really important, to answer the first question. Sections 12  

and 15 of 1971 Act are the other two sections which have some bearing.  

Section 12 prescribes punishment for contempt of court.  Section 15 deals  

with cognizance of criminal contempt by the Supreme Court or the High  

Court on its own motion or on a motion made by the Advocate General or  

any other person with the consent in writing of the Advocate General.  The  

expression “Advocate General” in clauses (a) and (b) of Section 15(1) in  

relation  to  the  Supreme Court  means  Attorney  General  or  the  Solicitor  

General.  

19. 1952 Act provides for appointment of Commissions of Inquiry  

and for  vesting such Commissions with certain powers.   Section 2(a)(i)  

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defines “appropriate Government” which  means the Central Government,  

in relation to a Commission appointed by it to make an inquiry into any  

matter relatable to any of the entries enumerated in List I or List II or List III  

in the Seventh Schedule to the Constitution and the State Government, in  

relation to a Commission appointed by it to make an inquiry into any matter  

relatable  to  any  of  the  entries  enumerated  in  List  II  or  List   III  in  the  

Seventh Schedule to the Constitution.  In relation to the State of Jammu  

and Kashmir, there is a different provision. Sections 4 and 5 deal with the  

powers  and  additional  powers  of  Commission.   Under  Section  4,  the  

Commission has powers of a civil court while trying a suit under the Code  

of  Civil   Procedure,  1908,  in  respect  of  the  matters,  namely,  (a)  

summoning and enforcing the attendance of any person from any part of  

India  and  examining  him  on  oath;  (b)  requiring  the  discovery  and  

production  of  any  document;  (c)  receiving  evidence  on  affidavits;  (d)  

requisitioning any public record or copy thereof from any court or office; (e)  

issuing commissions for the examination of witnesses or documents etc.  

Under  Section 5(4),  the Commission is deemed to be a civil  court  and  

when any offence as is described in Section 175, Section 178, Section  

179, Section 180 or Section 228 of the Indian Penal Code is committed in  

the presence of the Commission, the Commission may, after recording the  

facts constituting the offence and the statement of the accused as provided  

for in the Code of Criminal Procedure, forward the case to a magistrate  

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having jurisdiction to try the same.  Under Section 5(5), any proceeding  

before the Commission is deemed to be a judicial proceeding within the  

meaning of Sections 193 and 228 of the Indian Penal Code.

20. Section 5A empowers the Commission to utilize the services  

of certain officers and investigation agencies for conducting investigation  

pertaining to inquiry.  Section 10 makes provision for every member of the  

Commission and every officer appointed or authorized by the Commission  

in exercise of functions under the Act is deemed to be a public servant  

within the meaning of Section 21 of the IPC.

21. Section 10A provides for penalty for acts calculated to bring  

the  Commission  or  any  member  thereof  into  disrepute.   The  provision  

clothes the High Court with power to take cognizance of an offence stated  

in  sub-Section  (1)  upon  a  complaint  in  writing  made  by  a  member  of  

Commission or an officer of the Commission authorized by it in this behalf.  

Under  sub-Section (5),  the High Court  taking cognizance of  an offence  

under sub-Section (1) is mandated to try the case in accordance with the  

procedure  for  the  trial  of  warrant  cases  instituted  otherwise  than  on  a  

police report before a court of a Magistrate.  Section 10A reads as under:

“10A. Penalty for acts calculated to bring the Commission or  any  member  thereof  into  disrepute.  (1)  If  any  person,  by  words  either  spoken  or  intended  to  be  read,  makes  or  publishes  any  statement  or  does  any  other  act,  which  is  calculated to bring the Commission or any member thereof  

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into  disrepute,  he  shall  be  punishable  with  simple  imprisonment for a term which may extend to six months, or  with fine,  or with both.  

(2)  Notwithstanding  anything  contained  in  the  Code  of  Criminal  Procedure,  1973,  (2  of  1974)  when  an  offence  under sub-section (1) is alleged to have been committed, the  High Court may take cognizance of such offence, without the  case  being  committed  to  it,  upon  a  complaint  in  writing,  made by a member of a Commission or  an officer  of  the  Commission authorised by it in this behalf.   

(3) Every complaint referred to in sub-section (2) shall set  forth  the  facts  which  constitute  the  offence  alleged,  the  nature  of  such  offence  and  such  other  particulars  as  are  reasonably  sufficient  to  give  notice  to  the  accused of  the  offence alleged to have been committed by him.   

(4) No High Court shall take cognizance of an offence under  sub-section  (1)  unless  the  complaint  is  made  within  six  months from the date on which the offence is alleged to have  been committed.   

(5) A High Court taking cognizance of an offence under sub- section  (1)  shall  try  the  case  in  accordance  with  the  procedure for the trial of warrant cases instituted otherwise  than on a police report before a court of a Magistrate:  

 Provided that the personal attendance of a member of a  Commission as a complainant or otherwise is not required in  such trial.   

(6)  Notwithstanding  anything  contained  in  the  Code  of  Criminal Procedure, 1973, (2 of 1974) an appeal shall lie as  a matter of right from any Judgment of the High Court to the  Supreme Court, both on facts and on law.   

(7) Every appeal to the Supreme Court under sub-section  (6) shall be preferred within a period of thirty days from the  date of judgment appealed from:  

 Provided that, the Supreme Court may entertain an appeal  after  the  expiry  of  the  said  period  of  thirty  days  if  it  is  satisfied  that  the  appellant  had  sufficient  cause  for  not  preferring the appeal  within  the period of thirty  days.”      

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22. As is seen from above,  the Commission has the powers of  

civil  court  for  the limited purpose as set  out  in that  Section.   It  is  also  

treated as a civil court for the purposes of Section 5(4).  The proceedings  

before the Commission are deemed to be judicial proceedings within the  

meaning of Sections 193 and 228 of the Indian Penal Code.  But the real  

issues are:  whether the above provisions particularly and the 1952 Act  

generally  would bring  the Commission  comprising  of  a  sitting Supreme  

Court Judge within the meaning of “Court” under Section 2(c)(i)? Whether  

the proceedings before the Commission are judicial  proceedings for the  

purposes of Section 2(c) (ii)?  Whether the functioning of such Commission  

is part of the administration of justice within the meaning of Section 2(c)

(iii)?

23. We do not have any doubt that functions of the Commission  

appointed  under  the  1952  Act  are  not  like  a  body  discharging  judicial  

functions or judicial power.   The Commission appointed under the 1952  

Act in our view is not a Court and making the inquiry or determination of  

facts by the Commission is not of judicial character.   

24. Sections 19 and 20 of the Indian Penal Code define the words  

“Court” and the “Court of Justice” as under:

“19. The word “Judge” denotes not only every person who is  officially designated as a Judge, but also every person, —  who is empowered by law to give, in any legal proceeding,  civil or criminal, a definitive judgment, or a judgment which, if   

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not  appealed  against,  would  be  definitive,  or  a  judgment  which,  if  confirmed  by  some  other  authority,  would  be  definitive, or who is one of a body of persons, which body of persons is  empowered by law to give such a judgment.

20. The words “Court  of  Justice”  denote  a  Judge who is  empowered  by  law  to  act  judicially  alone,  or  a  body  of  Judges which  is  empowered by  law to  act  judicially  as  a  body,  when  such  Judge  or  body  of  Judges  is  acting  judicially.”

25. Though the 1971 Act does not define the term ‘Court’ but in  

our opinion, the ‘Court’ under that Act means the authority which has the  

legal power to give a judgment which, if confirmed by some other authority,  

would be definitive.  The Court is an institution which has power to regulate  

legal rights by the delivery of definitive judgments, and to enforce its orders  

by  legal  sanctions  and  if  its  procedure  is  judicial  in  character  in  such  

matters as the taking of evidence and the administration of oath, then it is  

a court.  The Commission constituted under the 1952 Act does not meet  

these pre-eminent tests of a Court.   

26. According  to Stephen (Stephen’s Commentaries on the Laws  

of England, 6th Edn., page 383) in every Court, there must be at least three  

constituent parts – the ‘actor’, ‘reus’ and ‘judex’: the ‘actor’, who complains  

of  an injury done;  the ‘reus’  or  defendant,  who is called upon to make  

satisfaction; and the ‘judex’ or judicial power, which is to examine the truth  

of the fact and to determine the law arising upon the fact and if any injury  

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appears to have been done, to ascertain, and by its officers to apply, the  

remedy.

27. In Bharat Bank Ltd.7, the Constitution Bench was seized with  

the question whether Industrial Tribunal is a court within the meaning of  

Article 136 of the Constitution of India.  Mehr Chand Mahajan, J. (as he  

then was) referred to the statement of Griffith, C.J. in  Huddart Parker &  

Co.8 and  observed,  “if  a  body  which  has  power  to  give  a  binding  and  

authoritative decision is able to take action so as to enforce that decision,  

then, but only then, according to the definition quoted, all the attributes of  

judicial power are plainly present.”  Mukherjea, J. on consideration of Shell   

Co.9, Huddart Parker & Co.8 and Rola Co.10 stated, “the other fundamental  

test  which distinguishes a judicial  from a quasi-judicial  or administrative  

body is that the former decides controversies according to law, while the  

latter  is  not  bound  strictly  to  follow  the  law  for  its  decision.  The  

investigation  of  facts  on  evidence  adduced  by  the  parties  may  be  a  

common  feature  in  both  judicial  and  quasi-judicial  tribunals,  but  the  

difference between the two lies in the fact that in a judicial proceeding the  

Judge has got to apply to the facts found, the law of the land which is fixed  

7 Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi; [AIR 1950 SC 188] 8 Huddart Parker & Co. Pty. Ltd. v. Moorehead [8 CLR 330] 9 Shell Co. of Australia, Ltd. v. Federal Commissioner of Taxation [(1931) AC 275] 10 Rola Co.(Australia) Pty. Limited v. Commonwealth [69 CLR 185]

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and  uniform.  The  quasi-judicial  tribunal,  on  the  other  hand,  gives  its  

decision on the differences between the parties  not  in  accordance with  

fixed rules of law but on principles of administrative policy or convenience  

or what appears to be just and proper in the circumstances of a particular  

case. In other words, the process employed by an Administrative Tribunal  

in coming to its decision is not what is known as “judicial process”.

28. In Brajnandan Sinha11, a three Judge Bench of this Court had  

an occasion to consider the question whether the Commissioner appointed  

under Public Servants (Inquiries) Act, 1850 (Act 37 of 1850) is a Court. In  

that case, Coke on Littleton and Stroud was referred that says that “Court”  

is  the  place  where  justice  is  judicially  administered.   The  Court  also  

considered Section 3 of the Indian Evidence Act and Sections 19 and 20 of  

the  Indian  Penal  Code  and  then  observed,  “the  pronouncement  of  a  

definitive  judgment  is  thus  considered  the  essential  sine qua non of  a  

Court  and  unless  and  until  a  binding  and  authoritative  judgment  is  

pronounced by a person or body of persons, it cannot be predicated that  

he or they constitute a Court.”  Bharat Bank Ltd.7 was also referred and so  

also  decisions  of  this  Court  in  Maqbool  Hussain12  and  S.A.  

Venkataraman13 and it  was noted that in  S.A. Venkataraman13 following  

11 Brajnandan Sinha v. Jyoti Narain; [(1955) 2 SCR 955] 12 Maqbool Hussain v. State of Bombay; [AIR 1953 SC 325] 13 S.A. Venkataraman v. Union of India [AIR 1954 SC 375]

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Maqbool Hussain12, the Constitution Bench laid down that both finality and  

authoritativeness  were  the  essential  tests  of  a  judicial  pronouncement.  

The Court said that in order to constitute a Court in the strict sense of the  

term,  an  essential  condition  is  that  the  Court  should  have,  apart  from  

having some of the trappings of a judicial tribunal, power to give a decision  

or a definitive judgment which has finality and authoritativeness which are  

the  essential  tests  of  a  judicial  pronouncement.   With  reference  to  the  

provisions of Public Servants (Inquiries) Act vis-à-vis Contempt of Courts  

Act, 1952, the three Judge Bench held that the Commissioner appointed  

under Public Servants (Inquiries) Act is not a Court within the meaning of  

Contempt of Courts Act, 1952.   

29. We are in full agreement with the legal position exposited in  

Brajnandan Sinha11 and approve the same.

30. The judgment of the full Bench of Madras High Court In Re :   

Mr. Hayles, Editor of “The Mail” and Anr.14 deserves consideration now.  

That  was a case where a sitting Judge of  the Madras High Court  was  

appointed as a member of the Industrial Tribunal under Section 7 of the  

Industrial Disputes Act.  The alleged contempt with which the contemnors  

were charged with contempt were both in relation to the proceedings for  

the Industrial Tribunal, though the Industrial Tribunal was presided over by  

the sitting Judge of the Madras High Court.  The disputes between workers  14 In Re : Mr. Hayles, Editor of “The Mail” and Anr.; [AIR 1955 Madras 1]

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and managements of Amalgamations Limited which owned the newspaper  

“The Mail” fell for adjudication before the Industrial Tribunal.  The contempt  

notice was issued by the Tribunal  to the counsel  for  the Editor  Govind  

Swaminathan and the Editor Hayles to show cause as to why action for  

contempt may not be initiated for criticism of the Tribunal. The respondent  

challenged the show cause notice on the ground that the Tribunal, though  

headed by a sitting Judge,  did not have power to punish for contempt.  

While dealing with the above challenge, the full Bench of the Madras High  

Court held that a Judge of the High Court when appointed as sole member  

of the Industrial Tribunal, did not have the powers of a Judge of that High  

Court to punish persons for contempt of the Tribunal even under Article  

215 of the Constitution of India.

31. The  Division  Bench  of  the  Madras  High  Court  in  P.  

Rajangam15 had an occasion to consider the question whether a writ  of  

certiorari  could  be issued to quash the inquiry  made by the Magistrate  

under  Section 176 of  the Code of  Criminal  Procedure  read with  Police  

Standing Order issued by the Government of Madras.  While dealing with  

this question, the principal aspect that was under consideration before the  

Division Bench of the Madras High Court with regard to the nature of such  

inquiry  was whether it  was judicial  or quasi  judicial  or non judicial.  The  

Division Bench referred to the decision of this Court in Brajnandan Sinha11  

15 P. Rajangam, Sub-Inspector of Police and Ors. v. State of Madras and ors. [AIR 1959 Madras 294]

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and ultimately held that the object of such inquiry was nothing more than to  

furnish materials on which action could be taken or not and the report by  

itself  would  purely  be  recommendatory  and  not  one  effective  proprio  

vigore.  

32. In Shri Ram Krishna Dalmia16, this Court held that the inquiry  

by the Commission under the 1952 Act was neither a judicial nor a quasi  

judicial  proceeding attracting the issue of appropriate writs under Article  

226 of the Constitution of India.

33. The two Judge Bench of  this  Court  in  Dr.  Baliram Waman  

Hiray17  was concerned with a question whether a Commission of Inquiry  

constituted under Section 3 of the 1952 Act is a Court for the purposes of  

Section 195 (1)(b) of  the Code of Criminal  Procedure, 1973.  The Court  

observed:     

“A Commission of Inquiry is not a court properly so called. A  Commission  is  obviously  appointed  by  the  appropriate  government ‘for the information of its mind’ in order for it to  decide  as  to  the  course  of  action  to  be  followed.  It  is  therefore a fact-finding body and is not required to adjudicate  upon  the  rights  of  the  parties  and  has  no  adjudicatory  functions.  The  government  is  not  bound  to  accept  its  recommendations or act upon its findings. The mere fact that  the procedure adopted by it is of a legal character and it has  the power to administer an oath will not impart to it the status  of a court.”

The Court further observed:

16 Shri Ram Krishna  Dalmia v. Shri Justice S.R.Tendolkar and ors; [1959 SCR 279] 17 Dr. Baliram Waman Hiray v. Justice B. Lentin and ors; [(1988) 4 SCC 419]

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“The least that is required of a court is the capacity to deliver  a ‘definitive judgment’,  and merely because the procedure  adopted by it  is  of  a  legal  character  and it  has  power  to  administer an oath will not impart to it the status of a court.  That being so, it must be held that a Commission of Inquiry  appointed by the appropriate government under Section 3(1)  of  the  Commissions  of  Inquiry  Act  is  not  a  court  for  the  purposes of Section 195 of the Code.”

33.1. The  Court  agreed  with  the  following  observations  of  the  

Nagpur High Court in M.V.Rajwade18 :

“The Commission in question was obviously  appointed by  the State Government “for the information of its own mind”,  in order that it  should not act,  in exercise of its executive  power,  “otherwise than in  accordance with  the dictates of  justice  and  equity”  in  ordering  a  departmental  enquiry  against  its  officers.  It  was,  therefore,  a  fact-finding  body  meant only to instruct the mind of the government without  producing any document of a judicial nature. The two cases  are parallel, and the decision must be as in ‘In re Maharaja   Madhava  Singh (D)’  [LR  (1905)  31  IA  239]   that  the  Commission was not a court. The term “court” has not been defined in the Contempt of  Courts Act, 1952. Its definition in the Indian Evidence Act,  1872, is not exhaustive and is intended only for purposes of  the Act. The Contempt of Courts Act, 1952 however, does  contemplate a “court of Justice” which as defined in Section  20, Penal Code, 1860 denotes “a Judge who is empowered  by  law  to  act  judicially”.  The  word  “Judge”  is  defined  in  Section 19 as denoting every person— ‘Who is empowered by law to give, in any legal proceeding,  civil or criminal, a definitive judgment, or a judgment which, if   not  appealed  against,  would  be  definitive,  or  a  judgment  which,  if  confirmed  by  some  other  authority,  would  be  definitive....’ The  minimum  test  of  a  “court  of  justice”,  in  the  above  definition, is, therefore, the legal power to give a judgment  which,  if  confirmed  by  some  other  authority,  would  be  definitive. Such is the case with the Commission appointed  

18 M.V.Rajwade, I.A.S., Dist. Magistrate v. Dr. S.M. Hassan and ors.; [AIR 1954 Nagpur 71]

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under  the  Public  Servants  (Inquiries)  Act,  1850,  whose  recommendations  constitute  a  definitive  judgment  when  confirmed by the government. This, however, is not the case  with  a  Commission  appointed  under  the  Commissions  of  Inquiry Act, 1952, whose findings are not contemplated by  law as liable at any stage to confirmation by any authority so  as to assume the character of a final decision.”

34. We agree with the view in  Dr.  Baliram Waman Hiray17 and  

approve the decision of the Nagpur High Court in M.V.Rajwade18.  We are  

also in agreement with the submission of Shri Mohan Parasaran, learned  

Solicitor General that a Commission appointed under the 1952 Act is in the  

nature of a statutory Commission and merely because a Commission of  

Inquiry  is headed by a sitting Judge of  the Supreme Court,  it  does not  

become  an  extended  arm  of  this  Court.   The  Commission  constituted  

under  the  1952  Act  is  a  fact  finding  body  to  enable  the  appropriate  

Government to decide as to the course of action to be followed.  Such  

Commission is not required to adjudicate upon the rights of the parties and  

has no adjudicatory functions.  The Government is not bound to accept its  

recommendations  or  act  upon  its  findings.   The  mere  fact  that  the  

procedure adopted by the Commission is of a legal character and it has  

the power to administer oath will not clothe it with the status of Court.  That  

being so, in our view, the Commission appointed under the 1952 Act is not  

a  Court  for  the  purposes  of  Contempt  of  Courts  Act  even  though  it  is  

headed by a sitting Supreme Court Judge. Moreover,  Section 10A of  the  

1952 Act leaves no matter of doubt that the High Court has been conferred  

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with the power to take cognizance of the complaint in respect of the acts  

calculated to bring the Commission or any member thereof into disrepute.  

Section  10A  provides  the  power  of  constructive  contempt  to  the  

Commission by making a reference to the High Court with a right of appeal  

to this Court. Our answer to the first question is, therefore, in the negative.

35. In  view  of  the  above  reasons,  the  contempt  petitions  are  

dismissed and the contempt notices are discharged.

      ….………..……………………CJI.  (R.M. Lodha)

      …….………..……………………J.  (Anil R. Dave)

      …….………..……………………J.        (Sudhansu Jyoti Mukhopadhaya)

      …….………..……………………J.  (Dipak Misra)

NEW DELHI;        …….………..……………………J. JULY 23, 2014. (Shiva Kirti Singh)

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