criminal contempt: Justice karnan vs supreme court of India: Delhi high court 2018

 IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6278/2017
% Reserved on : 9th August, 2017
Date of decision : 23rd August, 2017
JUSTICE C.S. KARNAN . …. Petitioner
Through : Mr. Mathews J. Nedumpara, Adv.
versus
THE HONBLE SUPREME
COURT OF INDIA & ORS ….. Respondents
Through : Mr. Sanjay Jain, Sr. Adv. with Mr.
Gaurang Kanth, CGSC for UOI along
with Ms. Biji Rajesh, Mr. Pushkar
Taimni, Ms. Eshita, Ms. Shipra Garg
and Ms. Shantala Sankrit, Advs.
Mr. Preet Pal Singh and Ms. Priyam
Mehta, Advs. for R-7.
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT

GITA MITTAL, ACTING CHIEF JUSTICE
“A Judge is required to maintain decorum and sanctity which are
inherent in judicial discipline and restraint. A Judge functioning at
any level has dignity in the eyes of public and credibility of the
entire system is dependent on the use of dignified language and
sustained restraint, moderation and sobriety. It is not to be
forgotten that independence of the Judiciary has an insegregable
and inseparable link with its credibility. …”
Dipak Misra, J. in
Amar Pal Singh v. State of U.P.,
(2012) 6 SCC 491 (para 27)
1. The instant writ petition has been instituted by a former Judge
of the High Court of Calcutta who stands convicted for criminal
contempt of court by an order dated 9th May, 2017 by a seven Judge
Bench of the Supreme Court of India and sentenced to undergo
imprisonment for a period of six months. Before discussing the
challenge laid by the petitioner, we may usefully notice the
proceedings undertaken by the Supreme Court against him.
2. On the 8th of February 2017, a seven Judge Bench comprising
of senior most members of the Supreme Court, taking note of the
correspondence addressed by the petitioner to the highest echelons of
judicial authorities, instituted suo motu contempt against him and
directed issuance of notice to show cause to the petitioner as to why
proceedings be not initiated against him and directed him to remain
personally present in court on the next date of hearing. The notice was
issued, returnable on 13th February, 2017. While issuing notice, the
petitioner was inter alia restrained from handling any judicial or
administrative work, as may have been assigned to him in furtherance
of the office held by him.
3. In response to the order, the petitioner addressed a letter dated
10th of February 2017 to the Secretary General of the Supreme Court
inter alia contending that the suo motu proceedings registered as Suo
Motu Cont.Pet.(C)No.1/2017 against a sitting judge of the High Court
were not maintainable. At the same time, the petitioner made further
serious allegations in the said communication.
4. On the 13th of February 2017, the communication dated 10th
February, 2017 was placed before the Bench which noted that every
page of the communication bore the petitioner’s signatures and the
same was taken on record. The Supreme Court noted that despite due
notice, neither the petitioner was present nor was he represented by
anybody authorized by him to do so. The court had refrained from
proceeding in the matter and deferred the hearing to 10th of March
2017, once again directing the petitioner to remain present in person
on the next date.
Notice in terms thereof was duly received by the petitioner on
15th February, 2017.
5. On the 10th of March 2017, instead of appearing in person, as
directed, the petitioner sent a fax dated 8th of March 2017 seeking a
meeting with the Chief Justice of India and other Judges of the
Supreme Court to discuss administrative issues expressed therein. The
court, on the 10th of March 2017, observed that “the above fax
message, dated 08.03.2017, cannot be considered as a response of
Shri Justice C.S. Karnan, either to the contempt petition, or to the
notice served upon him.”
In view thereof, the court observed that it had no alternative and
directed securing the presence of the petitioner by issuance of bailable
warrants in the sum of Rs.10,000/- to the satisfaction of the arresting
officer, returnable for the 31st of March 2017.
6. It was only in answer to the bailable warrants, that the petitioner
appeared before the Bench on the 31st of March 2017. The petitioner
handed over a letter dated 25th of March 2017 to the court. The
petitioner was given another opportunity to orally respond to his
communications which were on record, in any manner. The court also
observed that it would proceed in the matter only after receipt of his
written response by way of an affidavit. The petitioner was given a
second opportunity of four weeks to file a response to the notice to
show cause to respond to the factual assertions made in his
correspondence. The court directed the petitioner to remain present on
the next date of hearing as well. We extract hereunder the relevant
portion of the order dated 31st March, 2017 which reads as follows :
“1. Shri Justice C.S. Karnan has entered appearance in Court
in person. He was repeatedly asked, whether he affirms the
contents of the letters, written by him, as are available on the
record of the case. He was also asked whether he would like
to withdraw the allegations. The instant latter query was
made on the basis of a letter dated 25.03.2017, which Shri
Justice C.S.Karnan personally handed over to us, in Court
today. He has not responded, in any affirmative manner, one
way or the other. We would therefore proceed with the matter
only after receipt of his written response. Shri Justice
C.S.Karnan is hereby called upon to respond to the factual
position indicated in the various letters, addressed by him to
this Court, within four weeks from today. His response shall
be filed by way of an affidavit. Shri Justice C.S.Karnan is
directed to appear in Court in person on the next date of
hearing.
2. The repeated requests of Shri Justice C.S.Karnan, that he
should be permitted to discharge judicial and administrative
duties, are declined.”
7. In the next hearing, on the 1st of May 2017, the court observed
thus :
“2. Ever since the initiation of these proceedings, he has
been expressing further disrespect to this Court, he has also
been making press statements with abject impunity.
However, after the last order dated 31.3.2017, he is stated to
have issued orders (purported to be judicial) against the
members of this Bench, as also, another Hon’ble Judge of
this Court. Those orders have been received in the Registry
of this Court, and are part of the present compilation. …”
(Emphasis by us)
The court therefore, took cognizance of the orders passed by the
petitioner and prohibited all courts, tribunals, commissions and
authorities from taking cognizance thereof which had been passed
after the 8
th of February 2017.
8. It is noteworthy that the court also made observations on the
medical condition of the petitioner in para 3 of the order observing
thus :
“3. The tenor of the press briefings, as also, the purported
judicial orders passed by Shri Justice C.S. Karnan, prima
facie suggest, that he may not be in a fit medical condition, to
defend himself, in the present proceedings. We therefore
consider it appropriate, to require him to be medically
examined, before proceeding further. …”
9. It must also be noted that yet another, a third, opportunity was
also granted by the court to the petitioners to furnish his response to
the notice dated 8th February, 2017. The Supreme Court Bar
Association was permitted to intervene in the matter also. The case
was adjourned to 9th of May 2017.
10. The petitioner chose not to appear before the Supreme Court on
the 9th of May 2017 whence the court heard the ld. Senior Counsels
who were present and passed the following short order :
“2. On merits, we are of the considered view, that Sri
Justice C.S. Karnan, has committed contempt of the judiciary.
His actions constitute contempt of this Court, and of the
judiciary of the gravest nature. Having found him guilty of
committing contempt, we convict him accordingly. We are
satisfied to punish him by sentencing him to imprisonment for
six months. As a consequence, the contemnor shall not
perform any administrative or judicial functions.
3. Detailed order to follow.
4. The sentence of six months imposed by this Court on Sri
Justice C.S. Karnan, shall be executed forthwith, by the
Director General of Police, West Bengal, or through a team
constituted by
5. Since the incident of contempt includes public
statements and publication of orders made by the
contemnor, which were highlighted by the electronic and
print media, we are of the view, that no further statements
made by him should be published hereafter. Ordered
accordingly.
6. Disposed of in the aforesaid terms.”
(Emphasis supplied)
11. The above order could be executed with difficulty. The writ
petitioner states that as on date he stands arrested and as on date is
undergoing the sentence awarded to him.
12. The petitioner thereafter instituted a substantive writ petition
under Article 32 of the Constitution of India inter alia seeking a
declaration that the entire proceedings at the Supreme Court
culminating in the order dated 9th of May 2017 were unconstitutional
and void. Additionally, the petitioner had also filed an application
seeking recall of the order dated 9th of May 2017, contending that the
order was rendered void ab initio. In the writ petition, it was
contended that despite approaching several Advocate on Records
(AORs), the petitioner was unable to secure services of an AOR for
W.P.(C)No.6278/2017 Page 7 of 30
the purposes of filing his writ petition. Consequently, the matter was
mentioned on the 11th of May 2017 before the court of the Chief
Justice of India and oral directions were made to the Registry to accept
the petitioner’s writ petition. The petitioner makes a grievance that
the Registry refused to accept the same as also the Registrar General
of the Supreme Court of India. It is submitted that the matter was
accepted by the Registry only after it had to be mentioned three times
before the court.
13. The petitioner submits that his writ petition was still not listed
and that, by the letter bearing No.D.No.2427/2017/x dated 15th of May
2017 addressed by the Assistant Registrar (Judicial), the decision
dated 12th of May 2017 of the Registrar (J-I) declining registration of
the writ petition invoking Order XV Rule 5 of the Supreme Court
Rules, 2013 was conveyed to him.
14. The petitioner has consequently, filed the present writ petition
inter alia seeking a declaration that the respondent no.5 – Registrar
(Judicial) of the Supreme Court of India, who declined registration of
the writ petition of the petitioner, was not competent to entertain and
adjudicate the writ petition.
15. As Annexure ‘B’, the petitioner has annexed a copy of the writ
petition which was filed by him in the Supreme Court. We find that
the prayers made by the petitioner in the present writ petition from
prayers (a) to (g) are identical to the prayers made at prayers (a) to (g)
in the writ petition before the Supreme Court of India. These prayers
read as follows :
“a. Declare that the notice dated 08/02/2017 issued against
the Petitioner to show cause as to why proceedings under the
Contempt of Courts Act, 1971 should not be initiated against
him and all further proceedings in furtherance thereof,
culminating in the order dated 9th May, 2017 (Annexure D at
pages 60 to 63), are unconstitutional and void inasmuch as
they are against the principles of natural justice;
b. declare that the Contempt of Courts Act, 1971, and in
particular Sections 2(c), 12, 14(3), 15 and 17(5) thereof, is
unconstitutional and void inasmuch as the said Act and the
said Sections thereof are violative of Part III of the
Constitution, particular Articles 14, 19, 20 and 21 thereof; so
too the principles of natural justice, presumption of innocence
and the principles contained in the maxims nemo tenebatur
prodere seipsum “evidence against a subject ought not to be
wrung out of him but the offence has to be proved against him
by other men and means”, accusare nemo se debet nisi
coramdeo, “nobody is bound to incriminate himself” and
nemo tenetur seipsum accusare “no one shall be compelled to
bear witness against himself”.
c. In the alternative and without prejudice to prayer (a)
above, declare that the elementary principles of criminal
jurisprudence, namely, that presumption of innocence and the
principles contained in the maxims nemo tenebatur prodere
seipsum “evidence against a subject ought not to be wrung
out of him but the offence has to be proved against him by
other men and means”, accusare nemo se debet nisi
coramdeo, “nobody is bound to incriminate himself” and
nemo tenetur seipsum accusare “no one shall be compelled to
bear witness against himself”, be read into the statute;
d. declare that Clause (b) of Section 13 of the Contempt of
Courts Act, 1971, which provides that “the court may permit,
in any proceedings 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”, is
unconstitutional and void inasmuch as it does not provide
justification by truth as an absolute defence and the person
who relies on the said defence is all likely to be proceeded
against for aggravated contempt, for, the truth which he
pleads in defence of his innocence offers no protection from
being not constituting to be an offence of
contempt/aggravated contempt;
e. declare that the law declared by the Supreme Court
shall be binding on all courts within the territory of India,
nay, the judgments of the Supreme Court which constitute to
be precedents and thus often described as the law of the land
in terms of Article 141 of the Constitution constitute to be law
of the land only where they are in consonance with Part III of
the Constitution and not binding precedents where such “law
declared by the Supreme Court of India” is in violation of
Part III of the Constitution and thus null and void; so too
declare that the Supreme Court and the High Courts fall
within the ambit of the word “State” as defined in Article 12
of the Constitution;
f. Declare that the right to life within the meaning of
Article 21 of the Constitution of India takes within its ambit a
right of appeal, which will invest in a person convicted for a
criminal offence, a right to seek complete re-appreciation of
the case, both on facts and law, by a superior Court or
Tribunal and where the conviction is at the hands of the
Supreme Court as a fact-finding body, then an intra-Court
appeal to a larger Bench of the very same Court itself;
g. declare as a corollary to prayer (g) above that the
Contempt of Courts Act, 1971, in so far as it does not provide
for an intra-Court appeal against a conviction and sentence
at the hands of the Supreme Court of India as a fact-finding
Court, is unconstitutional and void inasmuch as the said Act
does not provide for a provision of appeal against its own
order of conviction and sentence;”
W.P.(C)No.6278/2017 Page 10 of 30
16. The only additional prayers made before this court are
contained in paras (h) to (k) which read as follows :
“h. To declare that Respondent No.5, Registrar (JudicialI),
Supreme Court of India, who has passed the impugned
order dated 12th May, 2017 declining registration of the Writ
Petition at the hands of the Petitioner under Article 32 of the
Constitution through his counsel is residing/situate within the
jurisdiction of this Hon’ble Court and this Hon’ble Court is
competent to entertain and adjudicate the instant Writ
Petition;
i. To declare that Order XV Rule 5 of the Supreme Court
Rules, 2013 is unconstitutional and void inasmuch as it has
meant substitution of the Supreme Court by its Respondent
No.5, Registrar (Judicial-I), the Registrar (J-I) acting as if he
is the Supreme Court;
j. To declare that Order-V, Rule (b) and Rule-7(c) of the
Supreme Court Rules, 2013, which permits registration of
applications/petitions only at the hands of an Advocate on
Record of the Supreme Court is ultra vires section 30 of the
Advocates Act, 1961, unconstitutional and void and, at any
rate, where no Advocate on Record is forthcoming to be on
record, an application/petition through any Advocate who is a
member of a State Bar Council deserves to be entertained;
k. To declare that Section 30 of the Advocates Act, 1961,
which came into effect from 15/06/2011, which invest a right
in every Advocate enrolled with a State Bar Council, to
practice in any Court or Tribunal in India, including the
Supreme Court of India, will supervene Order-V, Rule 1(b)
and Rule-7(c) of the Supreme Court Rules, 2013, which
provides that applications/petitions can be filed only through
an Advocate on Record of the Supreme Court;”
17. It is noteworthy that during the submissions made before us,
the petitioner has not pressed the prayers made at (i), (j) and (k) and
has therefore, not pressed the challenge to the constitutionality of Rule
1(b) and Rule 7(c) of Order IV (wrongly typed as Order V in the writ
petition) of the Supreme Court Rules, 2013 or the vires of Section 30
of the Advocates Act, 1961. Even otherwise, the grounds on which
this challenge is premised are no longer res integra and stand
authoritatively decided by judicial pronouncements of this court and
affirmed by the Supreme Court which we shall notice hereafter.
18. We have heard Mr. Mathews J. Nedumpara, ld. counsel for the
petitioner at length in support of the challenge laid by him and Mr.
Sanjay Jain, ld. ASG for the UOI.
Challenge to the order dated 12th of May, 2017 of the Registrar
(Judicial-I) of the Supreme Court of India
19. In the order dated 12th of May 2017, the Registrar (Judicial-I) of
the Supreme Court has noted that the challenge in the writ petition,
which was substantially laid to the order dated 9th May, 2017, holding
the petitioner guilty of contempt, was a nullity. The Registrar
(Judicial-I) has noted that the petitioner was seeking a declaration that
the entire proceedings of the court against the petitioner were void ab
initio.
20. Placing reliance on the pronouncements of the Supreme Court
in (1966) 3 SCR 744 (page 129), Naresh Shridhar Mirajkar & Ors. v.
State of Maharashtra & Anr.; (1988) 2 SCC 602, A.R. Antulay v.
R.S. Nayak; (2001) 5 SCC 42, Ajit Kumar Barat v. Secretary, Indian
W.P.(C)No.6278/2017 Page 12 of 30
Tea Association & Ors., the Registrar (Judicial-I) of the Supreme
Court observed that it was fairly well settled that the judicial
proceedings of the court were not amenable to writ jurisdiction under
Article 32 of the Constitution of India. It was therefore, held that the
writ petition was not maintainable and the relief lay somewhere else.
For this reason, the registration under provisions of Order XV Rule 5
of the Supreme Court Rules, 2013 was denied to the petitioner.
Alternative remedy not availed
21. Proceedings before the Supreme Court are governed by the
Supreme Court Rules, 2013. We may usefully extract Order XV
Rule 5 of the Supreme Court Rules, 2013 which provides a remedy to
a person aggrieved by an order passed by the Registrar and reads as
follows :
“5. The Registrar may refuse to receive a petition on the
ground that it discloses no reasonable cause or is frivolous or
contains scandalous matter but the petitioner may within
fifteen days of the making of such order, appeal by way of
motion, from such refusal to the Court.”
22. The Supreme Court Rules therefore, have envisaged a remedy
being an appeal within 15 days of the making of the order of refusal
by the Registrar to receive a petition on the ground that it discloses no
reasonable cause. The petitioner therefore, had an efficacious
alternate remedy available to him by way of an appeal prescribed
under the Rules and has admittedly failed to invoke the same.
Maintainability of the writ petition
23. Before us Mr. Nedumpara, ld. counsel for the petitioner submits
that the proceedings before the Supreme Court of India were a nullity
inter alia for the reason that the orders were passed in violation of
principles of natural justice and that the petitioner has a legal right to
seek issuance of a declaration to this effect, under Article 226 of the
Constitution of India. Mr. Nedumpara also sets up a contradictory
plea that he was not seeking an issuance of a writ against the Supreme
Court but only seeking issuance of a writ against the Registrar of the
court.
24. It is not disputed that the proceedings, which commenced upon
the passing of the order dated 8th of February 2017 and culminated in
the final order dated 9th of May 2017, were judicial proceedings
initiated suo motu by the court.
25. It is also to be noted that the petitioner has chosen not to file or
challenge the detailed order dated 9th of May 2017 passed by the
Supreme Court of India recording its reasons for conviction of the
petitioner as well as the sentence. The petitioner has not even annexed
this order with the writ petition. No ground of challenge thereto is laid
in the writ petition. No objection thereto is pressed orally.
26. So far as the challenge to judicial orders by way of writ petition
is concerned, we may usefully refer to the pronouncement of the
Supreme Court reported at AIR 1967 SC 1 : 1996 (3) SCR 744,
Naresh Shridhar Mirajkar & Ors. v.. State of Maharashtra & Anr.
wherein the Supreme Court was concerned with the challenge to
W.P.(C)No.6278/2017 Page 14 of 30
orders passed under Order XXXV Rule 12 and Order XXXIX Rule 1
of the CPC in a defamation case forbidding publication of the
evidence, first under Article 226 of the Constitution of India and then
before the Supreme Court of India under Article 32 of the Constitution
of India for enforcement of fundamental rights under Article 19(1)(a)
and (g) of the Constitution. On this challenge, the majority of the
Supreme Court speaking through Gajendragadkar, C.J., inter alia
observed as follows :
“122. I may dispose of a few results which it was suggested,
might flow from my view that this Court can issue a high
prerogative writ to the High Court for enforcement of
fundamental rights. It was suggested that the High Courts
might issue writs to this Court and to other High Courts and
one Judge or Bench in the High Court and the Supreme
Court might issue a writ to another Judge or Bench in the
same Court. This is an erroneous assumption. To begin with
the High Courts cannot issue a writ to the Supreme Court
because the writ goes down and not up. Similarly, a High
Court cannot issue a writ to another High Court. The writ
does not go to a court placed on an equal footing in the
matter of jurisdiction. …”
(Emphasis by us)
27. Reference may also be made to the pronouncement of the
Supreme Court reported at (2015) 9 SCC 461, Riju Prasad Sarma &
Ors. v. State of Assam & Ors. Taking note of the pronouncement in
Mirajkar, it was observed as follows :
“68. Hence, in accordance with such judgments holding that
the judgments of the High Court and the Supreme Court
cannot be subjected to writ jurisdiction and for want of
requisite governmental control, judiciary cannot be a State
under Article 12, we also hold that while acting on the
judicial side the courts are not included in the definition of
the State. …”
(Emphasis supplied)
28. We may at this stage, notice a complete mis-statement made by
Mr. Nedumpara, ld. counsel for the petitioner in the writ petition. In
para 19 of the writ petition, the petitioner has placed reliance on the
pronouncement of the Supreme Court reported at (1988) 2 SCC 602,
A.R. Antulay v. R.S. Nayak and wrongly asserted that the Supreme
Court has, “while declining a writ of certiorari at the hands of a Bench
of two Judges against an order of a Bench of five Judges made it clear
that the order of the Five-Judge Bench, which was one renderd
without jurisdiction, could be challenged before the High Court”.
We have repeatedly queried Mr. Nedumpara, ld. counsel for the
petitioner to point out from the pronouncement in A.R. Antulay where
the Supreme Court has so held. He was unable to do so.
29. In this regard, we may usefully also advert to the
pronouncement of the Supreme Court reported at (2002) 4 SCC 388,
Rupa Ashok Hurra v. Ashok Hurra wherein SSM Quadri, J.,
speaking for the majority had occasion to consider the pronouncement
in A.R. Antulay and held thus:
“10. On the question whether a writ of certiorari under
Article 32 of the Constitution could be issued to correct an
earlier order of this Court, Mukharji and Natarajan, JJ.
concluded that the powers of review could be exercised under
either Article 136 or Article 32 if there had been deprivation
of fundamental rights. Ranganath Misra, J. (as he then was)
opined that no writ of certiorari was permissible as the
Benches of the Supreme Court are not subordinate to the
larger Benches of this Court. To the same effect is the view
expressed by Oza, Ray, Venkatachaliah and Ranganathan,
JJ. Thus, in that case by a majority of 5:2 it was held that an
order of the Supreme Court was not amenable to correction
by issuance of a writ of certiorari under Article 32 of the
Constitution.”
(Emphasis by us)
A reading of the judgment shows that the above assertion by the
petitioner and counsel is a complete mis-statement of the principle laid
down by the court in A.R. Antulay.
30. In view of the above well settled legal position, the writ petition
challenging the orders passed by the Supreme Court in
Cont.Pet.(C)No.1/2017 is completely misdirected and untenable. The
writ petition laying such challenge before us is misconceived for the
same reason and has to be rejected.
Constitutionality of the Contempt of Courts Act
31. So far as the challenge to the constitutionality of the Contempt
of Courts Act is concerned, it has been pointed out, and rightly so, by
Mr. Sanjay Jain, ld. Senior Counsel for the UOI that the Supreme
Court of India has not exercised jurisdiction in exercise of powers
under the Contempt of Courts Act but has invoked its inherent
jurisdiction under Article 129 of the Constitution of India when it has
suo motu initiated the contempt proceedings against the petitioner. In
this regard, the initial order dated 8th of February 2017 and the final
order dated 9th of May 2017 may be adverted to. There is no
substance in the contention of Mr. Nedumpara, ld. counsel for the
petitioner that powers under Article 129 of the Constitution of India
cannot be invoked without recourse to the Contempt of Courts Act.
32. In the pronouncement of the Supreme Court reported at (2001)
1 SCC 516, T. Sudhakar Prasad v. Govt. of A.P. & Ors., the court
considered the nature and extent of power under Article 129 by the
Supreme Court and under Article 215 by the High Court in the
following terms :
“9. Articles 129 and 215 of the Constitution of India declare
the Supreme Court and every High Court to be a court of
record having all the powers of such a court including the
power to punish for contempt of itself. These articles do not
confer any new jurisdiction or status on the Supreme Court
and the High Courts. They merely recognise a pre-existing
situation that the Supreme Court and the High Courts are
courts of record and by virtue of being courts of record have
inherent jurisdiction to punish for contempt of themselves.
Such inherent power to punish for contempt is summary. It
is not governed or limited by any rules of procedure
excepting the principles of natural justice. The jurisdiction
contemplated by Articles 129 and 215 is inalienable. It cannot
be taken away or whittled down by any legislative enactment
subordinate to the Constitution. The provisions of the
Contempt of Courts Act, 1971 are in addition to and not in
derogation of Articles 129 and 215 of the Constitution. The
provisions of the Contempt of Courts Act, 1971 cannot be
used for limiting or regulating the exercise of jurisdiction
contemplated by the said two articles.”
(Emphasis by us)
33. Reference may also be made to judicial precedents in the
pronouncements of the Supreme Court reported at (1993) Supp (1)
SCC 529 : AIR 1992 SC 904, Pritam Pal v. High Court of Madhya
Pradesh, Jabalpur Through Registrar. Elaborate discussion by the
Supreme Court, in paras 15 to 24 of this pronouncement on this issue
and consideration of the several binding judicial precedents on the
subject may usefully be extracted and reads thus :
“15. Prior to the Contempt of Courts Act, 1971, it was held
that the High Court has inherent power to deal with a
contempt of itself summarily and to adopt its own procedure,
provided that it gives a fair and reasonable opportunity to the
contemnor to defend himself. But the procedure has now been
prescribed by Section 15 of the Act in exercise of the powers
conferred by Entry 14, List III of the Seventh Schedule of the
Constitution. Though the contempt jurisdiction of the Supreme
Court and the High Court can be regulated by legislation by
appropriate legislature under Entry 77 of List I and Entry 14
of List III in exercise of which the Parliament has enacted the
Act of 1971, the contempt jurisdiction of the Supreme Court
and the High Court is given a constitutional foundation by
declaring to be ‘Courts of Record’ under Articles 129 and
215 of the Constitution and, therefore, the inherent power of
the Supreme Court and the High Court cannot be taken
away by any legislation short of constitutional amendment.
In fact, Section 22 of the Act lays down that the provisions of
this Act shall be in addition to and not in derogation of the
provisions of any other law relating to contempt of courts. It
necessarily follows that the constitutional jurisdiction of the
Supreme Court and the High Court under Articles 129 and
215 cannot be curtailed by anything in the Act of 1971. The
above position of law has been well settled by this Court
in Sukhdev Singh Sodhi v. Chief Justice and Judges of the
PEPSU High Court [1954 SCR 454 : AIR 1954 SC 186 : 1954
Cri LJ 460] holding thus: (SCR p. 463)
“In any case, so far as contempt of a High Court itself is
concerned, as distinct from one of a subordinate court, the
Constitution vests these rights in every High Court, so no
Act of a legislature could take away that jurisdiction and
confer it afresh by virtue of its own authority.”
16. It has been further observed: (SCR pp. 463-64)
“The High Court can deal with it summarily and adopt its
own procedure. All that is necessary is that the procedure
is fair and that, the contemnor is made aware of the
charge against him and given a fair and reasonable
opportunity to defend himself.”

17. In R.L. Kapur v. State of Madras [(1972) 1 SCC 651 :
1972 SCC (Cri) 380] a question arose did the power of the
High Court of Madras to punish contempt of itself arise under
the Contempt of Courts Act, 1952 so that under Section 25 of
the General Clauses Act, 1897, Sections 63 to 70 of the Penal
Code and the relevant provisions of the Code of Criminal
Procedure would apply. This question was answered by this
Court in the following words: (SCC p. 654, para 5)
“The answer to such a question is furnished by Article 215
of the Constitution and the provisions of the Contempt of
Courts Act, 1952 themselves. Article 215 declares that
every High Court shall be a court of record and shall have
all powers of such a court including the power to punish
for contempt of itself. Whether Article 215 declares the
power of the High Court already existing in it by reason of
its being a court of record, or whether the article confers
the power as inherent in a court of record, the jurisdiction
is a special one, not arising or derived from the Contempt
of Courts Act, 1952, and therefore, not within the purview
of either the Penal Code or the Code of Criminal
Procedure.”
18. After giving the above answer to the query raised, this
Court has reiterated the view held in the case of Sukhdev
Singh Sodhi [1954 SCR 454 : AIR 1954 SC 186 : 1954 Cri LJ
460] .
19. The view expressed in Sukhdev Singh Sodhi [1954 SCR
454 : AIR 1954 SC 186 : 1954 Cri LJ 460] and followed
in R.L. Kapur [(1972) 1 SCC 651 : 1972 SCC (Cri) 380] has
been referred with approval in a recent decision in Delhi
Judicial Service Association v. State of Gujarat [(1991) 4
SCC 406] holding that the view of this Court in Sukhdev
Singh Sodhi [1954 SCR 454 : AIR 1954 SC 186 : 1954 Cri LJ
460] is “that even after the codification of the law of
contempt in India, the High Court’s jurisdiction as a Court of
Record to initiate proceedings and take seisin of the matter
remained unaffected by the Contempt of Courts Act, 1926.”
20. Beg, C.J. in S. Mulgaokar, Re [(1978) 3 SCC 339 : 1978
SCC (Cri) 402] has explained the special power of the
Supreme Court under Article 129 stating, “This Court is
armed, by Article 129 of the Constitution, with very wide and
special powers, as a Court of Record, to punish its
contempts”. (SCC p. 344, para 6)
21. In Delhi Judicial Service Association case [(1991) 4 SCC
406] , it has been pointed out as follows: (SCC p. 437, para
19)
“Article 129 provides that the Supreme Court shall be a
court of record and shall have all the powers of such a
court including the power to punish for contempt of itself.
Article 215 contains similar provision in respect of High
Court. Both the Supreme Court as well as High Courts are
courts of record having powers to punish for contempt
including the power to punish for contempt of itself.”
22. Yet another question whether the provisions of the Code
of Criminal Procedure are applicable to such proceedings,
has been negatively answered by this Court in Sukhdev Singh
Sodhi case [1954 SCR 454 : AIR 1954 SC 186 : 1954 Cri LJ
460] stating thus: (SCR pp. 463-64)
“We hold therefore that the Code of Criminal Procedure
does not apply in matters of contempt triable by the High
Court. The High Court can deal with it summarily and
adopt its own procedure. All that is necessary is that the
procedure is fair and that the contemnor is made aware of
the charge against him and given a fair and reasonable
opportunity to defend himself.”
W.P.(C)No.6278/2017 Page 21 of 30
23. See also Brahma Prakash Sharma v. State of U.P. [1953
SCR 1169 : AIR 1954 SC 10 : 1954 Cri LJ 238]
24. From the above judicial pronouncements of this Court, it
is manifestly clear that the power of the Supreme Court and
the High Court being the Courts of Record as embodied
under Articles 129 and 215 respectively cannot be restricted
and trammelled by any ordinary legislation including the
provisions of the Contempt of Courts Act and their inherent
power is elastic, unfettered and not subjected to any limit. It
would be appropriate, in this connection, to refer certain
English authorities dealing with the power of the superior
court as Courts of Record.”
(Emphasis by us)
34. The challenge to the constitutionality of the Contempt of Courts
Act in the present case does not lie inasmuch as the Supreme Court
has not exercised power under the Contempt of Courts Act but
invoked its inherent jurisdiction under Article 129 of the Constitution
of India.
Compliance with principles of natural justice
35. Mr. Nedumpara, ld. counsel for the petitioner urged at length
that the proceedings before the Supreme Court are void ab initio and
illegal for the reason that principles of natural justice were not
complied with.
36. Before considering the petitioner’s objections, we may also set
down the contours of what compliance with principles of natural
justice requires. In 1969 (2) SCC 262 A.K. Kraipak & Ors. v. UOI &
Ors., the court was concerned with a challenge by the petitioners to
the selections which were notified on the ground that they were
W.P.(C)No.6278/2017 Page 22 of 30
vitiated by the contravention of the principles of natural justice as the
power conferred on the selection board was a quasi judicial power.
Noting also that dividing line between the administrative power and
quasi judicial power was being gradually obliterated, the court
reiterated that principles of natural justice are not embodied rules and
their application and contours depended on the facts and
circumstances of the case. The observations of the court deserve to be
considered in extenso and read as follows :
“20. The aim of the rules of natural justice is to secure justice
or to put it negatively to prevent miscarriage of justice. These
rules can operate only in areas not covered by any law validly
made. In other words they do not supplant the law of the land
but supplement it. The concept of natural justice has
undergone a great deal of change in recent years. In the past
it was thought that it included just two rules namely : (1) no
one shall be a judge in his own case (Nemo debet esse judex
propria causa) and (2) no decision shall be given against a
party without affording him a reasonable hearing (audi
alteram partem). Very soon thereafter a third rule was
envisaged and that is that quasi-judicial enquiries must be
held in good faith, without bias and not arbitrarily or
unreasonably. But in the course of years many more
subsidiary rules came to be added to the rules of natural
justice. xxx xxx xxx As observed by this Court
in Suresh Koshy George v. The University of Kerala and
Others the rules of natural justice are not embodied rules.
What particular rule of natural justice should apply to a
given case must depend to a great extent on the facts and
circumstances of that case, the framework of the law under
which the enquiry is held and the constitution of the Tribunal
or body of persons appointed for that purpose. Whenever a
complaint is made before a court that some principle of
natural justice had been contravened the court has to decide
whether the observance of that rule was necessary for a just
W.P.(C)No.6278/2017 Page 23 of 30
decision on the facts of that case.”
37. In AIR 1977 SC 965 The Chairman, Board of Mining
Examination and Chief Inspector of Mines and another v. Ramjee,
the Supreme Court had observed that general observations relating to
principles of natural justice must be tested on the concrete facts of
each case and every minuscule violations do not spell illegality. If the
totality of circumstances satisfy the Court that the party visited with
adverse order has not suffered from denial of reasonable opportunity,
the Court will decline to be punctilious or fanatical as if the rules of
natural justice were sacred scriptures.
38. In (1977) 2 SCC 741 M/s Shrikrishnadas Tikara Vs. State
Government of Madhya Pradesh & Ors., the Supreme Court had
occasion to consider a challenge to second notice under the Mineral
Concession Rules, 1960, Rule 27 (5) when the mining lease already
stood cancelled after failure to comply with such earlier notice. The
petitioner had set up a plea of contravention of principles of natural
justice. In this regard it was held thus:
“8. … The lessee having been heard, natural justice has been
complied with. The fact in the second notice by the Collector
a personal hearing was offered, does not mean that the failure
personally to hear the petitioner was a contravention of the
canon of natural justice in the first case. It is well-established
that the principles of natural justice cannot be petrified or
fitted into rigid moulds. They are flexible and turn on the
facts and circumstances of each case.”
W.P.(C)No.6278/2017 Page 24 of 30
39. Even a duty to act fairly can be interpreted as meaning a duty to
observe certain aspects of rules of natural justice. A body may be
under a duty to give a fair consideration to the facts and to consider
the representations, but, not to disclose to those persons details of
information in its possession. Sometimes, a duty to act fairly can also
be sustained without providing an opportunity for an oral hearing. It
will depend on the nature of interest to be affected, the circumstances
in which a power is exercised and the nature of the sanctions involved
therein. It was so observed in (1975) 1 SCC 70 Erusian Equipment
and Chemicals Ltd. Vs. State of West Bengal & Anr.
40. In this regard, we may also usefully recollect the observations
of Krishna Iyer, J. in the pronouncement reported at (1977) 2 SCC
256, Chairman, Board of Mining Examination and Chief Inspector
of Mines & Anr. v. Ramjee wherein it was held thus :
“13. … Natural justice is no unruly horse, no lurking
landmine, nor a judicial cure-all. If fairness is shown by the
decision-maker to the man proceeded against, the form,
features and the fundamentals of such essential processual
propriety being conditioned by the facts and circumstances
of each situation, no breach of natural justice can be
complained of. Unnatural expansion of natural justice,
without reference to the administrative realities and other
factors of a given case, can be exasperating. We can neither
be finical nor fanatical but should be flexible yet firm in this
jurisdiction. No man shall be hit below the belt — that is the
conscience of the matter.”
(Emphasis by us)
The petitioner’s bald challenge has to be examined on the
W.P.(C)No.6278/2017 Page 25 of 30
touchstone of these established principles.
41. Mr. Nedumpara, ld. counsel for the petitioner began before us
contending that the petitioner was not even served with the notice
dated 8th of May 2017. This is contrary not only to the record of the
court extracted above but also to the averments in the writ petition.
42. In addition, the petitioner’s communication dated 10th February,
2017 challenges the authority of the court to initiate proceedings
which has been placed before the court on 13th February, 2017. The
record establishes that the petitioner was given more than ample
opportunity to file his response. He was afforded at least three
opportunities to tender his response, on the 8th of February 2017; 31st
of March 2017 as well as on the 1st of May 2017.
43. Instead of availing the opportunities and doing so, the petitioner
resorted to passing orders against the Judges of the Supreme Court and
making further contumacious statements to the press, as have been
noted in the order dated 1
st May, 2017.
44. Let us also examine the consideration by the court with regard
to the status of the petitioner’s defence. In this regard, we extract
herein paras 31 and 33 of the judgment by J.S. Khehar, the Chief
Justice of India :
“31. In the above view of the matter, we would have to rely
on the defence tendered by him, in the form of various
communications dispatched to this Court from time to time,
as also, during the course of hearing, when he appeared in
person on 31.3.2017. There is no other alternative with us.
We had granted liberty to Justice Karnan vide our order
dated 1.5.2017, to furnish his response to the show cause
notice (- before 8.5.2017), with the clear indication, that if he
W.P.(C)No.6278/2017 Page 26 of 30
choose not to file any response, the Court would proceed with
the matter by presuming, that he had nothing more to say.
xxx xxx xxx
33. We have given our thoughtful consideration to the factual
position noticed hereinabove, as also, the submissions
advanced by learned counsel, who assisted us during the
course of hearing. We have carefully examined the text of
the letters written by Shri Justice C.S. Karnan, from time to
time. We have closely examined the suo-motu procedure
adopted by him, whereby he passed orders which were
derogatory to the administration of justice, before he was
issued notice for contempt, by this Court. We have also
carefully analysed the orders passed by Shri Justice C.S.
Karnan suo-motu (in the purported exercise of the
jurisdiction vested in him under Article 226 of the
Constitution of India, read with Section 482 of the Code of
Criminal Procedure), even after the issuance of the
contempt notice to him, by this Court. His demeanour was
found to have become further aggressive, after this Court
passed orders from time to time, in this case. The contents of
the letters addressed by him contained scandalous material
against Judges of High Courts and the Supreme Court. This
correspondence was addressed to the highest constitutional
authorities, in all three wings of governance – the
legislature, the executive and the judiciary. His public
utterances, turned the judicial system into a laughing stock.
The local media, unmindful of the damage it was causing to
the judicial institution, merrily rode the Karnan wave. Even
the foreign media, had its dig at the Indian judiciary. None of
his actions can be considered as bona fide, especially in view
of the express directions issued by this Court on 8.2.2017,
requiring him to refrain from discharging any judicial or
administrative work. To restrain his abuse of suo-motu
jurisdiction, a further order had 45 to be passed by this Court
on 1.5.2017, restraining Courts, Tribunals, Commissions and
Authorities from taking cognizance of any order passed by
Justice Karnan.
(Emphasis by us)
W.P.(C)No.6278/2017 Page 27 of 30
45. Reference also requires to be made to paras 12, 14 and 17 of the
judgment authored by Chelameswar, J.:
“12. But one thing appears to be certain. If the above
mentioned conduct constitutes contempt, it surely can only be
criminal contempt falling under the head of scandalising the
Court.
xxx xxx xxx
14. Unfortunately, the contemnor never allowed the inquiry
in the right direction. On the other hand, he chose to
question the jurisdiction of this Court to initiate contempt
proceedings against him not on the ground that his activity
did not constitute contempt, but on the ground that no
contempt proceedings could be initiated against a Judge of a
High Court. According to the contemnor the only possible
legal action against a Judge of a High Court is to remove him
from office in accordance with the procedure of impeachment
prescribed under the Constitution – whatever be his
“conduct” and “misconduct”, a stand which clearly is
untenable in law. He did not stop there. He believed that the
initiation of contempt proceedings by this Court against him
would constitute an offence under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the
contemnor belongs to one of those communities falling within
the sweep of the protective umbrella of that enactment. He
not only believed so, but also purported to pass certain
orders ostensibly in exercise of the authority vested in him
by virtue of his appointment as a Judge of a High Court to
initiate various actions against members of this Bench, the
details of which are given in paragraphs 22 to 26. In
substance, (i) he accused the members of this Bench guilty of
prejudice against him, (ii) “he declared” that the initiation of
contempt proceedings against him is malafide judicial action
apart from constituting an offence under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
xxx xxx xxx
17. The power to punish for contempt of court has always
W.P.(C)No.6278/2017 Page 28 of 30
been recognized to be inherent in certain superior courts and
in others it was conferred by statutes.”
(Emphasis by us)
46. As a final reference, it was contended by Mr. Nedumpara, ld.
counsel for the petitioner that the petitioner was in law entitled to lead
evidence. The record of the proceedings before the Supreme Court
would show that the petitioner never sought any such opportunity.
47. The proceedings conducted before the Supreme Court would
show that the petitioner was given ample opportunity to file his
defence before the court but he chose not to do so.
48. Mr. Nedumpara, ld. counsel for the petitioner has contended
before us that the petitioner was under no legal obligation to file a
response and was entitled to maintain silence. Unfortunately, the
petitioner did not remain silent. The only difference was that instead
of filing a response before the court, he chose to make public
declarations of his defence and issued orders against the proceedings
before the Supreme Court of India. As noted above, the petitioner has
not objected before us to the final judgment dated 9th of May 2017 by
the Supreme Court recording reasons for the petitioner’s conviction.
49. It is evident from the above that the petitioner was served with
the notice to show cause. He was given repeated and adequate
opportunity to present his defence. The petitioner’s communications,
orders and conduct establish that he had full knowledge of the orders
of the court, proceedings as well as the material against him. It needs
bearing in mind that the case is not concerned with an illiterate or
impoverished person but with a legally trained person, an adjudicator
W.P.(C)No.6278/2017 Page 29 of 30
holding a Constitutional position. The submission that principles of
natural justice were not complied with is clearly not borne out from
the record.
Challenge to Advocate on Record Rules, 2013 – not pressed
50. In the writ petition, though the petitioner has laid a challenge to
certain provisions of the Supreme Court Rules, 2013 concerning
AORs, he has not pressed the same. In any case, the issue stands
decided by a Division Bench pronouncement of this court reported at
AIR 2012 Delhi 79, Balraj Singh Malik v. Supreme Court of India
Thr. Its Registrar General wherein in para 23, the court held thus :
“23. The aforesaid ruling clearly lays down that the words
“as to the persons practicing before a Court” appearing in
Article 145(i)(a) of the Constitution are comprehensive
enough to include a rule not merely as to the manner of
practice but also of the right to practice or the entitlement to
practice and, therefore, there was no question of conflict
between the legislative power of the Parliament and rule
making power of the Supreme Court given under Article
145. This Constitution Bench judgment of the Supreme Court
explaining the extent and scope of rule making power
conferred upon it under Article 145 of the Constitution is the
law of the land and has the binding effect even today.”
(Emphasis by us)
51. An order dated 14th September, 2015 in W.P.(C)Nos.371, 292-
93/2015, Arun Kumar & Ors. v. Supreme Court of India was passed
approving the view of this court in Balraj Singh Malik v. Supreme
Court of India repelling the challenge to Order IV, Rule 1, 5, 7(a)(i),
W.P.(C)No.6278/2017 Page 30 of 30
(b)(i) and 7(c) of the Supreme Court Rules.
52. It would appear that the petitioner has therefore, rightly, not
pressed the challenge to the Supreme Court Rules before us.
Result
53. In view of the above discussion, we find no merit in this writ
petition which is hereby dismissed.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
AUGUST 23, 2017
aj