State of Bihar v. Kripalu Shanker : Contempt is What Contempt Does
by Raju Ramachandran
Cite as : (1987) 4 SCC (Jour) 41
The recent Judgment of a two-Judge Bench of the Supreme Court in State of Bihar v. Kripalu Shankar1, is disturbing. It attenuates the Court's own power to punish for contempt by permitting government officials to make notings on files which "might even be unsavoury or even derogatory to an order of the Court" in the interest of "Mutual respect among the various units of the Administration in the process of disposal of justice". It also enlarges the area of privilege in respect of governmental files after expressing doubts on the correctness of the decision of the seven-Judge Bench in the case of S.P. Gupta v. Union of India2 In the process, it lays down propositions which are wide and doubtful.
For the detailed facts of the case the reader is referred to the report. For the purposes of the present piece the following facts are sufficient. In a service litigation before the Patna High Court reference was made to an earlier order of the High Court and the Court summoned the relevant governmental files. On going through the notings the High Court felt that its earlier order had been disregarded. Accordingly the High Court issued notice for contempt against the officers concerned, heard them and convicted them for contempt of court.
The State Government and the officers concerned appealed to the Supreme Court. The Supreme Court in allowing the appeal expressed its considered view that the internal notes file of the Government maintained according to the rules of business is a privileged document and proceeded to hold that "It would be dangerous to found an action for contempt, for the views expressed in the notes file, on the discovery of unpleasant or unsavoury notes, on a perusal of the notes file by the court after getting them summoned". The Court felt that this would impair the independent functioning of the civil service which was essential to democracy and that it would put the functioning of the Government "out of gear". The Court further took the view that in order to examine whether contempt had been committed or not what had to be looked into was the ultimate order and not a mere expression of views. The Court further held that the expression of opinion on the notes file would not constitute either civil or criminal contempt. The present writer respectfully submits that the views of the Court on the question of privilege and also on the question of contempt are clearly unsupportable.
In the Judges Transfer case2, (S.P. Gupta v. Union of India2), a majority of 6 out of 7 learned Judges ordered the disclosure of the correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India on the question of appointment of an Additional Judge of the Delhi High Court overruling the claim of privilege and taking the view that privilege could be claimed only in respect of documents which had a bearing on security of State and friendly relations with foreign countries. It is not necessary to go into the detailed reasons given by the majority in support of its views. Suffice it to say that decision in the said case was rendered keeping in view the concept of open government and the right to know of citizens in a democracy. In the light of the decision in the Judges Transfer case2 the present writer submits that the official file relating to the appointment of a Public Relations Officer in the Irrigation Department of the State of Bihar could surely not be a privileged document. Confidentiality is one thing, privilege quite another. The Judgment under study, referring to the Judges Transfer case2, notes that it gave "shock treatment" to the law of privilege against the State and states that the "legal milestone" in the Judges Transfer case2, "needs a retreat, a bit". With respect, the law laid down in the Judges Transfer case2 was binding.
The view of the Court that notings on the file however unsavoury or unpleasant they may be do not constitute contempt is also open to serious doubt. Undoubtedly such notings would not constitute civil contempt since they do not constitute the final order. But observations which are derogatory would certainly constitute criminal contempt which is defined in Section 2(c) of the Contempt of Courts Act, 1971 as the publication of any matter or the doing of any other act (emphasis supplied) which scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. By this test a derogatory noting would surely constitute criminal contempt. Contempt is what contempt does. While official files may be confidential files not open to the public, derogatory notings in such files would certainly tend to scandalise or lower the authority of the Court in the eyes of the administration and this constitutes criminal contempt. Consideration of frank and free exchange between government officials and effective and efficient functioning of the bureaucratic machine can never justify a derogatory observation about a court of law. Section 5 of the Contempt of Courts Act, 1971 protects fair comment, and this would be sufficient to protect "the independent functioning of the civil service" and "the fearless expression of opinion by the officers of the Government". In this regard the present writer submits that the approach of the High Court to the question as set out in the Supreme Court's judgment is correct: (SCC pp. 40-41, para 9)
"It is necessary to consider the submission urged by learned Advocate-General on behalf of the officers of the State and the Public Service Commission. The general submission was, that notings did not represent the concluded decision of the Government, and therefore, the officers were not liable for contempt of court. The proposition advanced by learned Advocate-General is rather too wide. A government file is not an individual's private property. It is public property. The opinions expressed therein are liable to reduce the credibility and the binding nature of the orders passed by the High Court, and that would amount to denigration of the State judiciary. No officer has the right to abuse the High Court or to ignore the orders passed by the High Court. I do not for a moment contend that every noting in the file contrary to the view taken by the High Court will amount to contempt of court. It will depend upon the nature of the view noted in the file and whether the notings are intended to set the High Court's order at nought maliciously. In the present case, the order of the High Court was explicit. The Advocate-General had advised explicitly that taking any steps to appoint Subh Chandra Jha ad hoc would amount to contempt of court and yet the officers were busy trying to find out how to ignore the High Court order. When the High Court's direction was to make the regular appointment through the BPSC where was the occasion for seeking concurrence of ad hoc appointment of Subh Chandra Jha? The whole file gives the impression that the officers in the State were not reconciled to the orders passed by the High Court. I am, therefore, unable to hold that some of the officers were not liable for contempt of court."
The present writer therefore respectfully submits that the judgment in the Kripalu Shanker case1, requires reconsideration at the earliest possible opportunity.
- (1987) 3 SCC 34
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- 1981 Supp SCC 87
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