Title not extracted — [1988] 3 S.C.R. 547

Our attention was drawn by Shri Ganguly to a decision of the B Allahabad High Court in G.N. Verma v. Hargovind Dayal and others, '"-·· A.LR. 1975 Allahabad 52 where the Division Bench reiterated that Rules which provide for the manner in which proceedings for Contempt of Court should be taken continue to apply even after the enactment of the Contempt of Courts Act, 1971. Therefore cognizance could be taken suo motu and information contained in the application c by a private individual could be utilised. As we have mentioned hereinbefore indubitably cognizance could be taken suo motu by the Court but members of the public have also the right to move the Court. That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General and if that consent is withheld without reasons or without consideration of that right granted to any other person under section 15 of the Act that could be investigated on an application made to the Court.

It was contended that neither the Attorney General nor the Solicitor General were proper or necessary parties. Reliance was placed on B.K. Kar v. The Chief Justice and his Companion Judges of the Orissa High Court and others, I19621 I S.C.R. 319. In that case under an order passed by the appellant, a Magistrate, one G was put in possession of some property on October 14, 1955. In revision the order was set aside by the High Court on August 27, 1957 and the opposite party S applied on November 20, 1957 to the appellant for redelivery F of possession. G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant. A telegram addressed to a pleader, not the counsel for G, was filed along with the application. The appellant refused to act on this application and telegram and on November 27, 1957, he allowed the application of G S for restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued. The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings. The appellant appealed to this Court and impleaded the Chief Justice and Judges of the High Court as .respondents. This Court held that the appellant was

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 585

not guilty of contempt of court. It further held that in a contempt matter the Chief Justice and Judges of the High Court should not be made parties and the title of such a proceeding should be "In re ..... the alleged contemnor". Mudholkar, J. speaking for the Court observed at page 321 of the report that the decision of Judges given in a contempt matter is like any other decision of those Judges, thaUs, in matters which come up hefore them by way of suit, petition, appeal or reference. Since that was the real position, this Court observed that there was no warrant for the practice which was in vogue in India - }t. there., and which had been in vogue for over a century, of makirig the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. The said observations ·were sought to be relied in aid of the proposition that where the decisiqn of the Attorney General or the Solicitor General was involved, they were not c necessary or proper parties. Reliance on this decision for this purpose is entirely misconceived. Where an appeal comes to this Court, which is a judicial decision, the Judges who rendered the decision are not necessary parties. There is no !is between a suitor and a judge in a judicial adjudication. But the position is entirely different where there D is suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act. In respect of justiciability of that act of the official there is a !is and if that !is is inter-linked with the proceeding for contempt, there is warrant for niaking him party in that proceeding though the prayers and the notice must be issued differently. E

As mentioned hereinbefore in the case of S. C. Sarkar v. V. C. Misra (supra) this Court had observed that it may well be advices to avail of the advised and assistance of the Advocate General before initiating proceedings. Shri Ganguly appearing for the Solicitor General sought to urge .before us that advice and assistance could not F be compelled by a suitor. This cannot be agreed to. The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General. If such right is not considered on relevant materials then that action is justieiable in an appropriate proceeding for contempt. G

Reference may be made to the case of Attorney Ger.era/ v. Times Newspapers Ltd., [1973] 3 All E.R. 54. In that case a drug company began to make and sell in the United Kingdom a sedative which con- tained the drug thalidomide. Lord Morris observed in that case that the purpose and existence of courts of law is to preserve freedom H

586 SUPREME COURT REPORTS [1988] 3 S.C.R.

within the Jaw for all well disposed members of the community and anything which hampers the administration of law should be prevented but it does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress which was a matter of public sympathy and concern. Dealing with this aspect Lord Cross of Chelsea has observed that 'contempt of court' means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modem mind that its essence is a supposed affront to the dignity of the court. 'Justice' he said is an ambiguous word. When we speak of the administration of justice we mean the administration of the law, but often the answer which the law c gives to some problem is regarded by many people as unjust. Lord Cross further observed that there must be no prejudging of the issues in a case is one thing. To say that no one must in any circumstances exert any pressure on a party to litigation to induce him to act in relation to the litigation in a way in which he would otherwise not choose to act is another and a very different thing. Lord Cross at page 87 of the report observed as follows:

"In conclusion I would say that I disagree with the views expressed by Lord Denning MR and Phillimore Ll (1973 1 All E.R. 815) as to the 'role' of the Attorney-General in cases of alleged contempt of court. If he takes them up he does not do so as a Minister of the Crown 'putting the authority of the Crown behind the complaint'-but as 'amicus curiae' bringing to the uotice of the court some matter of which he considers that the court shall be in- formed in the interests of the administration of justice. It ·~ F is, I think, most desirable that in civil as well as in criminal cases anyone who thinks that a criminal coutempt of court has been or is about to be committed should, if possible, -·- place the facts before the Attorney-General for him to consider whether or not those facts appear to disclose a contempt of court of sufficient gravity to warrant his bring- G ing the matter to the notice of the court. Of course, in some cases it may be essential if an application is to be made at all for it to be made promptly and there may be no time for the person affected by the 'contempt' to put the ,facts before the attorney before moving himself. Again the fact that the attorney declines to take up the case will not pre- H vent the complainant from seeking to persuade the court

P.N. DUDA v. P.S. SHANKAR [MUKHARJI, J.[ 587

that notwithstanding the refusal of the attorney to act the A matter complained of does in fact constitute a contempt of which the court should take notice. Yet, again, of course, there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it. In such cases if the facts come to the B _..,;,;__' knowl.edge of the attorney from some other source he will naturally himself bring the matter to the attention of the court."

->- ! Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the C Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid. In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and others, [1985] 1 D S.C.C. 641, the observations of the aforesaid decision in Thalidomide case were relied upon.

Reliance was also placed on the observations of the House of Lords in Gouriot and others v. H.M. Attorney General, [1978] Appeal Cases 435. There it held the initiation of litigation and the determi- E nation of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General. The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet v. Union of Post Office Workers, [1978] Appeal Cases 435 F where the House of Lords could find no legal basis for the lower courts' attempt to outflank the Attorney General's refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiff's claim for declaration and interim in junction even in the absence of fiat by the Attorney General. The statutory provisions were entirely diffe- G rent. It may be in the context that the Attorney General had to move in his discretion which is not justiciable. But in our opinion it is justici- able. English decisions are of persuasive value and we would prefer to resi out decision on the observations of Lord Denning in Gouriet v. Union of Post Office Workers & Ors., [1977] I Q.B. 729 at 752 to 763 though made in connection with the Attorney General's discretion in H

588 SUPREME COURT REPORTS [1988] 3 S.C.R.

giving consent in instituting a suit for injunction by a member of the A public. In U.K. the position of Attorney General as a member of the Cabinet is different. There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report. See also the observations of Sikri J. as the Chief Justice then was, in C.K. Daphtary & Ors. (supra) B at page 109 of the report.

Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi, [1974] 1 Andhra Law Times 170. We are unable to accept the ratio stated in view of the terms of section 15 of the Act. Our attention was also drawn to the case of N. Venkataramanappa v. D.K. Naikar, A.LR. 1978 Karnataka 57. c It is also not possible to accept the position that under no circum- stances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into.

Having considered the peculiar facts and circumstances of this D case and the allegation of bias which were made against the Attorney General and the Solicitor General, it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court.

E In the aforesaid view of the matter, this petition fails and it is accordingly dismissed and the application of Shri Trivedi is accordingly disposed of.

RANG ANATHAN, J. I agree with the conclusion of my learned brother that no case has been made but for initiating contempt pro- -- F ceedings against respondent No. 1. The principles applicable to, and the case law on the subject have been discussed by him at length and I do not have much to add. The impugned. comments were made by respondent No. 1 in the course of his key note address at a seminar on 'Accountability of the Legislature, Executive and Judiciary under the Constitution of India' organised by a Bar Council. Though, in view of G the position held by the speaker, the contents of the speech, and, in particular, some 'savoury' passages therefrom have been highlighted in a section of the Press, the speech was made before an audience comprising essentially of lawyers, jurists and judges. The speech represented primarily an exercise by the speaker to evaluate the roles of the executive, legislature and judiciary in this country since its inde- H pendence and to put forward the theory that, like the executive and

P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.I 589

the legislature, the judiciary must also be accountable to the people. The petitioner contends that there are certain passages in the speech A which seem to attribute a sub-conscious partiality, bias or predelictiol1 in judges in disposing of various matters before them and that these comments fall within the scope of the decision of this Court in the case of E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, [1970] 2 S.C.C. 325. Barrie & Lowe in their "Law of Contempt," (Second B Edition, PP. 233, 240-1) and Arlidge and Eady in their "Law of Contempt" (Second Edition, PP. 162-3, 168), on a review of the judicial decisions on the topic, seem to suggest that even allegation of -~ partiality and bias on the part of judges may not amount to contempt so long as it is free from the taint of 'scurrilous abuse' and can be considered to be 'fair comment'. The observations made by the Lord Justice Phillimore Committee on Contempt of Court in 1974 0'1 this c type of contempt (Paras 160 & 161) also make interesting reading. I do not, however, think it is necessary to pursue this aspect of the matter. In the present case, it is true, as pointed out by my learned brother, there are passages in the speech which, torn out of context, may -be liable to be misunderstood. But reading the speech as a whole and D bearing in mind the select audience to which it was addressecl, I agree with my learned brother no contempt has been committed. I think that we should accept, at its face value, the affidavit of respondent No. 1 that the speech was only a theoretical dissertation and that he intended no disrespect to this Court or its functioning. E

2Copy pinpoint2. The second aspect of the case on which arguments have been addressed before us relate to the procedure to be followed in such matters. As this aspect raises some important issues, I would like to state my views thereon separately.

3Copy pinpoint3. The criminal miscellaneous petition filed by the petitioner purports to be only "information" u/s 15(1)(a) and (b) of the Contempt of Courts Act, 1971 ('the Act'). The petitioner seeks to inform this Court that he came to know from a report in 'Hindustan Times' that respondent No. 1, in the course of a speech delivered by him at Hyderabad on November .28, 1987, had made certain state- ments which, in the petitioner's opinion, rendered him liable to be proceeded against for comtempt of court. Appending what is stated to be a full text of the said speech as published in the 'Newstime", the petitioner prays that this Court should be pleased to "initiate contempt of court proceedings suo motu under S. 15(1) of the Contempt of Court Act, 1971 read with rule 3(a) of the Supreme Court (Contempt of Court) Rules, 1975". Though the prayer is vague as to the person H

590 SUPREME COURT REPORTS [1988[ 3 S.C.R.

against whom the proceedings are to be initiated, the allegations in the A petition leave no doubt that it is respondent No. ), and only he, who, even according to the petitioner, is to be charged with contempt. Nevertheless, the petitioner has added three more respondents to the Criminal Miscellaneous Petition, namely the Attorney General of India (by name), the Solicitor General of India (by name) and Sri 13 Ramoji Rao, Editor of "Newstime". In my opinion, this petition raises certain question of general importance which need to be discussed so as to evolve a proper procedure, at least for future guidance in these matters. I proceed to discuss these aspects.

4Copy pinpoint4. Article 129 of the Constitution declares that the Supreme Court shall be a court of record and that it shall have all the powers of c such a court including the power to punish for contempt of itself. However, the powers of the Supreme Court and High Court in this regard have been recently classified in the Contempt of Courts Act, 197]. This Act defines "contempt of court" and classifies it into two categories, "civil contempt" and "criminal contempt". These defini- tions need not be set out here, particularly as the petitioner has filed a D 'criminal miscellaneous petition and it is quite clear that what he seeks to charge respondent No. 1 with is "criminal contempt". Section 14 deals with contempt in the face of the court and we are not concerned with it here. Section 15 specifies how criminal contempt is to be taken cognizance of. It will be useful to set out here the relevant portions of this section: E "15. Cognizance of criminal contempt in other cases-

(1) In the case of a criminal contempt, other than a con- tempt referred to in Section 14, the Supreme Court or the · High Court may take action on its own motion or on a F motion made by-

(a) the Advocate-General, or .,' (b) any other person, with the consent in writing of the Advocate-General, or G (c) in relation to the High Court for the Union Territory of Delhi, such law officer as the Central Government may, by notification in the official Gazette, specify in this behalf, or any other person, with the consent in writing of such law officer. H xxx xxx xxx

P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.] 591

(3) Every motion or reference made under the section A shall specify the contempt of which the person charged is :' alleged to be guilty.

' Explanation- In this section, the expression "Advocate- ' general" means B (a) In relation to the Supreme Court, the Attorney- General or the Solicitor-General;

-" ' xxx xxx xxx

5Copy pinpoint5. This Court has, with the approval of the President, framed, in exercise of its powers under section 23 of the Act read with article 145 ,.

C of the Constitution, rules to regulate proceedings for contempt of the Supreme Court. The rules relevant for our present purpose are the following:

3. In case of contempt other than the contempt referred to D in rule 2, the Court may take action:

(a) suo motu, or

(b) on a petition made by Attorney General, or Solicitor General or E

( c) on a petition made by any person, and in the case of a criminal contempt, with the consent in writing of the At- torney General or the Solicitor General.

• '--W • 4.(a) Every petition under rule 3(b) or (c) shall contain: F

(i) the name, description and place of residence of the petitioner or petitioners and of the persons charged;

(ii) nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt as may be necessary for the proper determination of the case;

(iii) if a petition has previously been made by him on the same facts, the petitioner shall give the details of the petition previously made and shall also indicate the result thereof;

592 SUPREME COURT REPORTS [1988] 3 S.C.R.

•i (b) The petition shall be supported by an affidavit. A (c) where the petitioner relies upon a document or docu- ments in his possession or power, he shall file such document or documents of true copies thereof with the petition. B (d) No court-fee shall be payable on the petition, and on any documents filed in the proceedings.

5. Every petition under rule 3(b) and (c) shall be posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied c that no prima facie case has been made out for issue of notice, may dismiss the petition, and, if not so satisfied direct that notice of the petition be issued to the contemner.

D 6.(1) Notice to the person charged shall be in Form I. The persons charged shall, unless otherwise charged shall, un- less otherwise ordered, appear in person before the Court as directed on the date fixed for hearing of the proceedings, and shall continue to remain present during hearing till the proceedings is finally disposed of by order of the Court. E (2) When action is instituted on' petition, a copy of the petition along with the annexures and affidavits shall be served upon the person charged.

10. The Court may direct the Attorney General or , ~~ F Solicitor General to appear and assist the Court. ·9 II!!

6Copy pinpoint6. A conjoint perusal of the Act and rules makes it clear that, so far as this Court is concerned, action for contempt may be taken by the Court on its own motion or on the motion of the Attorney General (or Solicitor General) or of any other person with his consent in writing. G there is no difficulty where the court or the Attorney-General choose to move in the matter. But when this is not done and a private person desires that such action should be taken, one of three courses is open to him. He may place the information in his possession before the Court and request the Court to take action: (vide C.K. Daphtary v. O.P. Gupta, [1971] Suppl. S.C.R. 76 and Sarkar v. Misra, 11981] 2 H S.C.R. 331); he may place the information before the Attorney -

P.N. DUDA v. P.S. SHANKAR [RANGANATHAN, J.] 593

General and request him to take action; or he may place the iriforma- A tion before the Attorney General and request him to permit him to move the Court. In the present case, the petitioner alleges that he has failed in the latter two courses-this will be considered a little later- and has moved this "petition" praying that this Court should take suo motu action. The "petition" at this stage, constitutes nothing more than a mode of layirig the relevant information before the Court for B such action as the Court may deem fit and no proceedings can com- mence until and unless the Court considers the information before it and decides to initiate proceedirigs. Rules 3 and 4 of the Supreme -)i Court (Contempt of Court) Rules also envisage a petition only where the Attorney General or any other person, with his written consent, • moves the Court. Rule 5 is clear that only a petition moved under rule 3(b) and (c) is to be posted before the Court for preliminary hearing. c The form of a criminal miscellaneous petition styling the informant as the petitioner and certairi other. persons as respondents is inappro- priate for merely lodging the relevant information before the Court under rule 3(a). It would seem that the proper title of such a proceed- ing should be" In re ..... (the alleged contemner)" (see: Karv. Chief D Justice, I1962] 1 SCR 320 though that decision related to an appeal from an order of conviction for contempt by the High Court). The form in which this request has to be sought and considered in such cases has also been touched upon by the Delhi High Court in Anil Kumar Gupta v. K. Subba Rao, ILR 1974 Delhi 1. This case, at the outset, poirited out that the iriformation had been erroneously E numbered by the office of the Court as Criminal Original No. 51 of 1978 and concluded with the following observations:

"The office is to take note that in future if any information is lodged even in the form of a petition inviting this court to take action u/s 15 of the Contempt of Courts Act or Article F 215 of the Constitution, where the information is not one of the persons named ill section 15 of the said Act, it should not be styled as a petition and should not be placed before the judicial side. Such a petition should be placed before the Chief Justice for orders in chambers and the Chief Justice may decide either by himself or in consultation with G the other judges of the court whether to take any cogni- :1-. zance of the information. The office to direct to strike off the information as "Criminal Original No. 51of1973" and to file it."

I think that the direction given by the Delhi High Court sets out H

594 SUPREME COURT REPORTS [1988] 3 S.C.R.

A the proper procedure in such cases and may be adopted, atleast in future, as a practice direction or as a rule, by this Court and other High Courts. However, a petition having been filed and similar petitions having perhaps been entertained earlier in several courts, I do not suggest that this petition should be dismissed on this ground. I

7Copy pinpoint7. In this case, apart from filing his information in the form of a miscellaneous petition, the petitioner has added as respondents to the -• petition not only the alleged contemner bnt three more persons. He says that he approached the Attorney General of India and the Solicitor General of India for their written consent to enable him to file a petition under Section 15( 1) read with rule 3(c) but that they have refused to exercise the jurisdiction vested in them by law and that, therefore, "they have been impleaded as parties in the present proceedings (as necessary and/or proper parties) in order that they may get an opportunity to jnstify the stand they have taken in the matter flowing from their refusal to exercise jurisdiction." So far as respondent No. 4, is concerned, the only reason given for impleading him is that the full text of the speech of respondent No. 1 has come out in the newspaper published by him and placed before the court and that he was being impleaded only to prove the authenticity of the speech, in the event of possible disclaimer of the respondent No. 1. In other words, respondent No. 4 is only a possible witness through whom he proposes to prove the authenticity of the speech which • E contains the words of alleged contempt. In my opinion this cannot be done. Assuming that a petition is the proper form of approach to the court under rule 3(a), I have indicated earlier the proper title to such a petition. It will have no respondents and it will be for the court to issue notice to persons against whom a case for contempt needs examina- tion. Viewed as a petition under rule 3(c), rule 4 envisages only that the petiti::m should contain the name, description and place of resi- dence of the petitioner(s) and the persons charged. It does not con- template any other person being made a party to it. Under rule 6 the notice to the person charged is to be in the form appended to the rules and the form of notice not only makes it clear that it is to be addressed only to a -person charged with contempt of court but also contains certain directions appropriate only to such a person. This is naturally so, for it is obvious that the only persons who can be respondents in such a petition are the persons who are charged with criminal con-'" ..... tempt. The petition, as filed here, is a petition for initiating proceed- ings for contempt of court only against respondent No. 1. Even if the - petitioner has any other cause C?f action against other persons, such persons are neither necessary nor even proper parties to the petition.

P.N. DUDA v_ p_s_ SHANKAR [RANGANATHAN, J_J 595

This is especially so because such cause of action is of a purely civil nature. At best the petitioner can say that he is entitled to a writ of mandamus directing the Attorney General and Solicitor General to discharge their statutory obligation in case they fail to do so or a writ of certiorari to quash their decision in case they withhold unreasonably their consent to the petitioner filing a petition. But this is a remedy to be sought independently against these persons by a separate writ peti- B tion. He cannot seek to get relief against the Attorney General anil Solicitor General by a petition mixing-up his criminal charge against respondent No. 1 and his civil grievances against the Attorney General -~ and Solicitor General_ It is true that on the terms of Section 15(1) and • rule 3(c), a petition for contempt will not be maintainable by a private person without the written consent of the Attorney General or the Solicitor General. But he cannot seek to get over this objection to the maintainability of a petition without such consent merely by the device of adding them as respondents to the petition, even if he had added, in the petition, a prayer for some relief against them. But, in this case, even such a prayer is not there and no relief is sought against the , Attorney General or Solicitor General. This petition, therefore, if treated as a petition under rule 3(c), is not maintainable for want of consent by the 'Attorney General and the Solicitor General and has to be dismissed as such. That apart, as I have already pointed out, the inclusion of respondents 2 to 4 as respondents to the petition is totally unjustified and, even if the petition is to be taken on record as a mere laying of information under rule 3(a}, the names of respondents 2 to 4 E

- must be struck off from the array of parties_ I would direct ' accordingly.

8Copy pinpoint8. This case itself illustrates the type of difficulties which can -~- arise by filing such a rolled up petition. Having regard to the nature of ' ' the allegations against respondent No. 1 and the form in which the petition had been presented, we were of opinion that the question as to "what action, if any, need be taken" by this Court on such a petition called for consideration and we directed the issue of such a notice by our order dated 10.2.1988. The terms of the order make it clear that we wanted to hear the parties mentioned in the petition and the Addi- tional Solicitor General on the above question_ Some aspects that arise for consideration are: whether the petition is properly framed; what is the relief, if any, that can be given to the petitioner against the alleged refusal of the Attorney General and Solicitor General to give consent to the petitioner to file a contempt petition; and whether, in case they considered themselves disabled from acting on the application, the Additional Solicitor General can be called upon to exercise the said H

596 SUPREME COURT REPORTS 11988] 3 S.C.R. A. function. We needed assistance on these issues. If the Attorney ' A General/Solicitor General had not been made parties, we would have called upon them to assist us under rule 10. Since, however, they had been added as parties, we directed notices to issue to them "as to what action, if any, need be taken on the petition." Unfortunately, we find that a notice was issued not only to the first respondent named in the B petition (the alleged contemner) but also to the other "respondents" named in the petition, in the form prescribed under the rules contain- -~ ing recitals which are appropriate only in the case of a person charged with contempt of court, though a mention was specifically made that th~ contempt charge was only against respondent No. 1. The issue of notices in the prescribed form to the other respondents was unjusti- fied. This type of difficulty arose only because the petition joined, as c respondents, persons who are totally unnecessary for deciding the -, issue of contempt. There was no question of any 'contempt' notice being issued to the Attorney General/Solicitor General as there was not even a suggestion of any such allegation against them and no other relief had also been sought against them. I think that, in the circum- D stances, notices should not have been issued to them in the form in which they were issued.

9Copy pinpoint9. I may next consider the question whether even if the petitioner was particular about his right to file a petition under rule 3(c), he can have any recourse against the Attorney General and the E Solicitor General in case they refuse their consent or, as alleged in this case, refuse to deal with the petitioner's application. One possible view is that the discretion to be exercised by the Attorney General/ Solicitor General is a quasi-judicial discretion and that its exercise is subject to judicial review by this court. In this connection, reference - i

was made to the judgment of this Court in Conscientious Group v. F Mohammed Yunus and Ors., J.T. 1987(2) 377. In that case, the petitioner had withdrawn a contempt petition filed by it as the Attorney General had expressed his inability to exercise his juris- diction for reasons stated by him. Subsequently, the petitioner on learning that it could get the consent of the Solicitor General, sought to have the earlier order ;ecalled. Bhagwati C.J. observed: G " ..... we would make it clear that it would be open to the petitioner to approach the Solicitor General and to revive ;"- the petition after obtaining the consent of the Solicitor General under Rule 3(c). Since this remedy is available to the petitioner for reviving the petition for contempt, we do not propose to recall the order permitting withdrawal of

P.N. DUDA v. P.S. SHANKAR (RANGANATHAN, J.J 597

the petition. The petition can be revived by the petitioner after obtaining the consent of the Solicitor General. We may point out that the petitioner will not be without remedy, if the Solicitor General refuses his consent on any irrelevant ground."

The matter was then referred to the learned Solicitor General, B who declined consent stating that it would not be in public interest to give his consent. The court then considered the reasons given by the learned Solicitor General and came to the conclusion that the ground stated by him for declining the consent could not be said to be irrele- vant in the eye of the law or characterised as arbitrary, illegal or unreasonable. The petition for contempt was, threfore, dismissed. From these circumstances, it is sought to be suggested that the action of the Attorney General/Solicitor General is subject to judicial review by this Court.

,\ 10. In my opinion this is not the necessary conclusion that follows from the observations extracted above. Our attention has been D " drawn by Sri Ganguly, appearing for the learned Solicitor General, to the decision in Rajagopal Rao v. Murtza Mutjahdi, [1974) 1 Andhra Law Times, 170 and N. Venkataramanappa v. D.K. Naikar, A.LR. 1978 Kar. 57, that the grant or refusal of consent is not justiciable. My learned brother has not accepted the correctness of these decisions on the ground that the statute confers a duty and discretion on these law E

- officers and that their action cannot be beyond judicial review as no person can be above law. I am, however, inclined to think there is something to be said in favour of the view taken by the two High Courts for two reasons.

11Copy pinpoint11. In the first place the role of the Attorney General/Solicitor F General is more akin to that of an amicus curiae to assist the court in •' an administrative matter rather than a quasi-judicial role determining a Lis involving rights of a member of the public vis-a-vis an alleged contemner. As pointed out by the Supreme Court in S. C. Sarkar v. V.C. Misra, [1981) 2 S.C.R. 331, there are difficulties in the Court making frequent use of the suo motu power for punishing persons G ). guilty of contempt. The Attorney General offers his aid and assistance in two ways. On the one hand, he moves the Court for action when he comes across cases where he thinks there is necessity to vindicate the dignity and reputation of the Court. On the other, he helps in screen- ing complaints from the public to safeguard the valuable time of the Court. The observations of Lord Reid and Lord Cross in th" H

598 SUPREME COURT REPORTS 11988] 3 S.C.R.

Thalidomide case: A.G. v. Times Newspapers, 11972] A.C. 277, of the A House of Lords, in a different context, in Gouriet v. Union of Post Office Workers, I 1978] A.C. 435 and of Lord Denning and Lawton . LJ, in the same case in the Court of Appeal {1977-1 Q.B. 729) bring but this aspect of the Attorney General's functions.

12Copy pinpoint12. Secondly, if we analyse the types of action which the Attorney General/Solicitor General may take on an application made to him, the position will be this. Firstly, he may grant permission in which case no further question will arise. I do not think it will be open to any other person to come to the court with a prayer that the Attorney General/Solicitor General ought not to have given his con- sent. i'or, it would always be open to the Court, in case they find no c reason to initiate action, to dismiss the petition. Secondly, it is possible that the Attorney General/Solicitor General may not be able to dis- charge his statutory function in a particular case for one reason or other. This was what happened in the case of Mohammed Yunus cited earlier. In that case it was only the Attorney General who was unable to discharge his functions under Section 15 and the petitioner could I move the Solicitor General, who declined consent. But there might be ( cases in which both the Attorney General and the Solicitor General are not in a position to take a decision on the application made to them by a private party. Thirdly, both of them may refuse their consent. In the latter two cases, I am unable to see what purpose would be served by the Court spending its time to find out whether the Attorney General/Solicitor General should have given a decison one way or the other. For, the petitioner is not without remedy. It is open to him always to place the information in his possession before the Court and request the Court to take action. (see, Lord Cross in A.G. v. Times -.. ' Newspaper, 11974] A.C. 277 at p. 321. Bhagwati, C.J. could have meant this when he said that, if the consent of the Solicitor General was withheld on irrelevant grounds, the petitioner was not without remedy.

13Copy pinpoint13. the petitioner has submitted that the Attorney General and Solicitor General acted unreasonably in declining to act in the present case. Though, as indicated earlier, it wiII not be a fruitful exercise to review such decision, particularly when a request for suo motu action under rule 3(a) has been made, the point having been raised, I shall consider how valid this complaint is. What the petitioner here did was that, instead of merely placing the information with him before the Attorney General/Solicitor General and seeking their consent to his filing a petition before the Court, the petitioner wrote a letter contain-

P.N. DUDA v. P.S. SHANK.AR [RANGANATHAN, J.[ 599

ing a lot of other irrelevant matter. In particular, in paragraph 7, he suggested that the Attorney General/Solicitor General might feel embrassed in giving consent for the prosecution as the person sought to be charged happened to be the Minister "who effectively hires and fires law officers and for all purposes at whose pleasure they hold their office." He also expressed his apprehensions about the possible outcome of his request. In other words, the petitioner, while purport- B ing to seek the consent of the Attorney General/Solicitor General, simultaneously expressed his lack of confidence in their judgment and their ability to discharge their duties objectively and impartially. It is not surprising that, in this situation, the learned Attorney General/ Solicitor General decided not to exercise their statutory powers at all one way or the other. The learned Attorney General has placed before us a statement explaining his stand in the matter. He has pointed out C that two occasions had arisen in the past when, for compelling reasons, he could not deal with an application for consent filed before him. So far as the present case is concerned, he has stated:

"The Attorney General has declined to exercise his func- D tions under Section 15 of the Contempt of the Courts Act in view of the allegations of lack of impartiality and independ- ence. These allegations contain a reflection of bias and foreclosure on the part of the Atorney Genera. The Attorney General declined to investigate the matter since the allegation of bias should normally disentitle him from E proceeding further with the matter. The Attorney General has followed this course consistently."

From the above narration, it is clear that the Attorney General/

-+· Solicitor General acted rightly and in the best traditions of their office by declining to deal with the petitioner's request and leaving it to the petitioner to follow such other course as he considered advisable. The F

petitioner had cast aspersions agaist both the Law Officers doubting their ability act objectively and thus stultified by his own conduct this course indicated by the statute.

14Copy pinpoint14. The last question that remains to be touched upon is G whether, in a case where neither the Attorney General nor the Solicitor General is in a position to consider a request under Section 15(1)(c), it is open to the petitioner to seek the consent of some· other law officer such as the Additional Solicitor General. Apart from the fact that, in the present case, the petitioner would have had the same criticism against the Additional Solicitor General as he had against the H

600 SUPREME COURT REPORTS [1988] 3 S.C.R.

A Attorney General/Solicitor General, the clear answer to the question appears to be that it is not open to him to seek such consent. Section 15 is quite clear that the written consent of only those officers as have been specifically authorised by the section would be taken note of for entertaining a petition under the section. But this does not, in any way, deprive the petitioner of his remedy as he can come to Court, as B indeed he has done, requesting the court to take suo motu action.

15Copy pinpoint15. For purposes of convenience, I may sum up my conclusions. They are:

(a) This petition, if treated as one filed under Section 15(1) read c with rule 3(a) is not in proper form and, if treated as one filed under rules 3(b) and 3( c), is not maintainable as it is not filed by the Attorney General/Solicitor General or by any person with his consent.

(b) In either event the petitioner should not have added to the petition respondents other than the person who, according to the petitioner, is guilty of contempt of court and so their names should be deleted from the array of parties.

(c) In case the Attorney General/Solicitor General refuse con- sent or decline to act, their decision is not judicially reviewable and petitioner's remedy is to approach the Court for action under rule 3(a).

(d) In this case, the Attorney General/Solicitor General acted properly in declining to deal with the petitioner's application either way; and F (e) Considering the petition as nothing more than information under rule 3(a) on which this Court may or may not take suo motu action and, after hearing oounsel for the alleged contemn er, we think there is no need to initiate proceedings against respondent No. 1 for contempt of court. G I, therefore, agree that the petition should be dismissed.

S.L. Petition dismissed.