TMI Blog2009 (4) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... a Kazhagam through its Presidium Chairman Shri E. Madhusudhanan. 2. Background facts; 2.1 In an apparent bid to pressurize the Central Government to expedite implementation of Sethu Samudram Project, Democratic Progressive Alliance comprising Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, passed a resolution on 24.9.2007 to resort to total cessation of work and closure of shops on 1.10.2007 and to conduct a general meeting of the leaders of all parties on 30.9.2007 at Chennai. The relevant portions of the resolution are extracted below: ...in order to make understand the fact that the support of the people is only to implement the Sethu Samudram Project expeditiously to the Central Government, it is resolved to conduct total cessation of work and closure of shops on the 1 st of October, and to conduct a general meeting of the leaders of all parties on the 30th day of September, at Chennai. 2.2. The petitioner challenged the afore-mentioned resolution in Writ Petition No. 31435 of 2007 filed before Madras High Court and prayed that the call given by the political parties fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esenting respondent Nos. 1 to 3, who volunteered to appear, also made their submissions. After considering the respective submissions, this Court passed a detailed order, the relevant portions of which are reproduced below: From a bare perusal of the aforesaid decision, it would be clear that neither anybody can give a call for Bandh nor the same can be enforced. The High Court, in the present case, has recorded a, prima facie, finding that, in the present case, the call was given for Bandh and not strike/hartal. Ordinarily, High Court as well as this Court refrains from passing an interim order the effect of which would be granting the main relief. But in cases where a party approaches court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of court is concluded by judgment of this Court, the main case would become infructuous, different considerations would arise and appropriate interim order should be passed. In the present case, apart from the State of Tami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to follow up incident to take proper stern and timely action. 11. Ensure that the 'Hartal' passes off peacefully. 12. Collectors may requisition and spare other department vehicles if required by the District Superintendent of Police. Any incident of law and order and other matters of significance should be informed to Chief Secretary's Control Room Telephone Nos. 26571388 and 26570372, followed by FAX-25677128. Bi-hourly report commencing from 0600 hours on 01.10.2007 about the 'Hartal' should be given to Chief Secretary's Control Room even if there is no incident. First Report should commence from 0600 hours on 01.10.2007. 2.7 On coming to know of this Court's order through electronic media, respondent No. 1 directed that telephonic instructions be given to all the Collectors to convene meetings with the respective Superintendents of Police for ensuring that law and order and public tranquility are maintained. 2.8 The Court's order was officially communicated to respondent No. 1 on the same day i.e., 30.9.2007 at about 10.30 p.m. by fax. The latter immediately forwarded the same to respondent No. 2 for taking necessary action. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of shops, hotels and other public utilities, attendance in Government offices etc. 3. On 3.10.2007, the petitioner filed this petition under Article 129 of the Constitution of India read with the 1971 Act and prayed that the respondents be punished for violation and disobedience of the Court's order dated 30.9.2007. The gravamen of the petitioner's allegation is that in complete disregard of the restraint order passed by this Court, the concerned political parties including Dravida Munnetra Kazhagam enforced the bandh in the entire State by ensuring that buses owned by the State Transport Corporation are kept off the road and shops and other business establishments remain closed; that 45,000 private buses were also not allowed to ply on that day; that shops and other business establishments were forcibly closed by the cadres of Dravida Munnetra Kazhagam party and that the State machinery did not take any action to ensure functioning of public transport system and opening of the shops etc. It is also the petitioner's case that even though 50,000 employees of the State Transport Corporation came forward to carry out their duties but they were prevented from entering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How many complaints are received against judges? There is provision in law for impeachment of sitting judges. The MPs' sitting here should also think about it. Nothing wrong about it. Our MPs, including the ministers should know about it. Everyone including the ministers can sign it. 4. In paragraph 7 of the reply affidavit filed by him, respondent No. 1 has averred that after telecast of the news about the restraint order passed by the Court, telephonic instructions were issued to the District Collectors to maintain law and order and public peace. In para 8 of the affidavit, respondent No. 1 has averred that immediately on receipt of the Court's order, a copy thereof was sent to respondent No. 2 with suitable instructions to take necessary action and within the available time the police force was mobilized and bandobust was provided to all vital installations, State and Central Government offices, educational institutions, Tamil Nadu State Transport Corporation depots, bus stands, railway stations, airports, markets, places of worship, hospitals, important junctions, business areas and other places where people used to congregate and bandobust was also provided to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were prevented from carrying out their duties or that the conductors did not issue tickets or that the main gates of bus terminals were closed and locked. He has also denied receipt of any representation or telegram. In para 15 of the affidavit, respondent No. 3 has referred to the call given by the trade unions to abstain from work in the wake of decision taken by the political parties and averred that even though the latter withdrew the call for cessation of work, there was no corresponding response from the trade unions due to paucity of time and also due to the fact that most of the workers had left for outside places taking advantage of the impending strike and two days' holidays. Respondent No. 3 has also stated that the crew members who did not attend the duty on 01.10.2007 have not been paid the wages as per the policy no work no pay . Respondent No. 3 has controverted the petitioner's assertion that daily collection of the Transport Corporations is over ₹ 10 crores. According to him, the average collection of the Transport Corporations is ₹ 7.5 crores per day, which is reduced to half on any holiday and less than half in the event of continuous holiday ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, Democratic Progressive Alliance decided to hold a day long fast on 1st October, 2007 to draw attention to the importance of the Sethu Samuthiram Project and for early implementation of the same. I made it clear at that time that the fast was not against the order of this Hon'ble Court. I annex an extract from the Hindu newspaper 1st October, 2007 reporting this (Annexure -R1). I also gave instructions to Government officials to carry out the order of this Hon'ble Court and to ensure that the Bandh did not take place on 1st October, 2007, and that the day long fast undertaken by political parties should not in any way affect the general public or hinder their routine life. 8. Respondent No. 5 has taken the stand that at the time of passing of order by this Court, he was in his constituency (Trichy) and on receipt of information about the Court's order, he instructed respondent No. 3 to take steps to maintain normalcy in transport services on 1.10.2007. Respondent No. 5 has also stated that he had been continuously monitoring the operation of transport services from Trichy and also made efforts to contact the trade unions and instructed them to direct the workers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of Times Global Broadcasting Company Limited, which is running Times Now Channel, sent letter dated 16 January, 2009 stating therein that the company is unable to provide the original tapes and news clips of the speech delivered by respondent No. 6 because in terms of the Uplinking and Downlinking Guidelines issued by the Ministry of Information Broadcasting, Government of India, the company maintains a record of the contents uplinked and downlinked by its channel for a period of 90 days from the date of its telecast. After taking note of that letter, the Court allowed further time to the parties to file affidavits. 12. In furtherance of the liberty given by the Court, the petitioner filed affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, who were working as Reporter, Assistant Camera Person and Senior Sub-Editor respectively with Jaya T.V. on 1.10.2007. In his affidavit, Shri M. Ramasubramanian has claimed that he was deputed to cover the hunger strike organized by DMK and other allied parties on 1.10.2007 in front of the State Guest House, Chepauk, Chennai. He has then averred that he along with Shri Ravikumar (camera person) and Shri Satish (camera a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of Mr. T.R. Baalu, into the Avid system. From this, I selected the portions in the speech of Mr. Baalu which were most objectionable and found appropriate to be telecast. Accordingly, the portions were selected and telecast in the news bulletin carried by the channel on 1.10.2007 at 7.30 PM and on 2.10.2007 at 7.30 PM. The portions of the speech as telecast on the news bulletins clearly show the speech made by Mr. T.R. Baalu and the objectionable statements made by him, the translations of which read as follows: A Judge is a judge till yesterday. Today there are allegations against him. Every day a list of corruption charges are coming out from Delhi. What does that mean? Is a person who was honest till yesterday dishonest today? The nation has not forgotten the fact that such people are also judges. When has there been [hearing] on a Sunday? Something unprecedented is happening. Why is there a provision for impeachment in the Constitution? Our M.Ps are all sitting here. We should also think about it. There is nothing wrong about it. Our MPs must know about it. Including Ministers. Everybody can sign it. The news bulletins as telecast is submitted before this Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the workers of the party headed by respondent No. 4 indulged in physical violence and ensured that bandh is observed throughout the State by forcing closure of shops and commercial/ industrial establishments. Learned Counsel relied on the newspaper reports to buttress his submission that the workers of Dravida Munnetra Kazhagam party had, by wielding deadly weapons compelled the shop keepers to down the shutters and general public to remain away from the streets and argued that this should be treated as sufficient for drawing an inference that respondent No. 4 had deliberately manipulated violation of the Court's order. Shri Guru Krishna Kumar emphasized that the business, commercial/industrial establishments could not have remained closed without intimidation and use of force by the outfits of the political parties and argued that respondent No. 4 should be held responsible for the acts of his party workers. Learned Counsel then argued that by sitting on hunger strike, respondent No. 4 and other political parties deliberately violated the Court's order restraining them to organize bandh because out of fear the schools, colleges, business, commercial and industrial es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (Supp) 3 SCR 127; T.N. Godavarman Thirumulpad v. Ashok Khot 2006CriLJ2773 ; Aswini Kumar Ghose v. Arabinda Bose [1953]4SCR215 and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar 1970CriLJ1670 . 16. Shri R. Venkataraman, learned Counsel appearing on behalf of the petitioner in Contempt Petition No. 262 of 2007 argued that respondent Nos. 1 to 5 are guilty of civil contempt inasmuch as they willfully disobeyed the directions contained in order dated 30.9.2007 passed in Special Leave Petition (Civil) No. 18879 of 2007 and ensured that total bandh is organized in the State. Learned Counsel further argued that respondent No. 6 is guilty of criminal contempt because he scandalized the Court's order dated 30.9.2007 by making unwarranted remarks against the judiciary in general and particularly against the Bench which passed the restraint order. 17. Shri Ashok Desai, learned senior counsel appearing for respondent Nos. 1 and 2 argued that his clients cannot be held guilty of contempt of court because even before formal receipt of the Court's order at 10.30 p.m. on 30.9.2007, respondent No. 1 had issued detailed instructions to all the officers to ensure that general publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst under the 1971 Act. Learned Counsel submitted that telefax dated 30.9.2007 sent at the instance of respondent No. 1 also shows that the administration had taken positive steps to ensure that essential services are not disturbed due to call given by the political parties for cessation of work etc. on 1.10.2007 and the police bandobust was provided for all public and private establishments and effective steps were taken for maintaining transport services. 19. Dr. A.M. Singhvi, learned senior counsel appearing for respondent Nos. 3 and 5, argued that the concerned Minister and Secretary had made genuine efforts to ensure that operation of buses by the State Transport Corporations is not jeopardized due to the call given by the Democratic Progressive Alliance for cessation of work or for hunger strike on 1.10.2007 and, therefore, they cannot be held guilty of contempt under Section 2(b) of the 1971 Act. Dr. Singhvi placed before the Court a compilation of fax messages and circulars issued by respondent No. 3 and statements containing the details of buses operated by seven State Transport Corporations on 1.10.2007 and collection of revenue to the tune of ₹ 4.83 crores an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the doing of any other act whatsoever which- (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. An analysis of Section 2(b) shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court constitutes civil contempt. If this definition is read with Article 129 of the Constitution of India, it becomes clear that being a Court of record, this Court can punish a person for civil contempt if it is found that he has willfully disobeyed any judgment etc. or violated undertaking given to the Court. 23. The term wilful (willful) has not been defined in the 1971 Act. Therefore, it will be useful to notice dictionary meaning of the said term. As per The New Oxford Illustrated Dictionary (1980 Edition), the term willful means asserting or disposed to assert one's own will against instruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Policy and Promotion, Government of India, Shri G.S. Kang, Secretary, Department of Industries, Government of Bihar, Shri S.N. Khan, Chairman and Managing Director and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department, Industrial Development Bank of India were guilty of contempt. The facts of the case were that by an order dated 8.7.1996, this Court approved the proposal made by the Government of India for take over of M/s. Ashok Paper Mills by M/s. Nouveau Capital and Finance Ltd. and disposed of the writ petition filed by Ashok Paper Kamgar Union. Later on, by an order dated 1.5.1997, all concerned were directed to participate in implementation of the scheme and the Finance Secretary, Ministry of Finance, Government of India was directed to ensure that the legal requirements are fulfilled and the mill is rehabilitated and both Phases I and II of the Scheme are given effect to. Two more orders were passed by the court in the matter on 31.7.2000 and 1.9.2000. The petitioner alleged that the respondents have failed to comply with the directions given by the Court for implementation of the Scheme and, therefore, they are liable for contempt of court. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged noncompliance with the orders passed by this Court on 8-7-1996, 1-5-1997 and 31-7-2000 has been established against any one of the respondents. [Emphasis added] 25. In Delhi Development Authority v. Skipper Construction 1995CriLJ2107 , this Court highlighted distinction between the civil and criminal contempt in the following words: Civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court. On the contrary, criminal contempts are criminal in nature. It may include outrages on the Judges in open court, defiant disobedience to the Judges in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 3. The Court did not direct respondent Nos. 1 to 3 to act in any particular manner or take certain specific steps to meet the challenge likely to be posed by implementation of the call given by Democratic Progressive Alliance. This was so because the Court could not have presumed that the restraint order passed by it will be disregarded or flouted by the political parties. Therefore, respondent Nos. 1 to 3 cannot, per se, be held guilty of disobeying or violating the Court's order dated 30th September, 2007 and punished for committing contempt of court as defined in Section 2(b) of the 1971 Act. 28. No doubt, the petitioners have repeatedly asserted that the buses of State Transport Corporations and 45000 private buses remained off the road on 1.10.2007 causing serious inconvenience to the general public and loss of revenue to the tune of ₹ 10 crores, but their assertion is partly belied by the counter affidavits of respondent Nos. 1 to 3, wherein all the officers have detailed the reasons for operation of less number of buses in the initial hours on 1.10.2007 and the fact that revenue collection of the day was to the tune of ₹ 4.83 crores. In his affidavit, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkers of his party coerced the people to close the commercial and business establishments is being mentioned only to be rejected. The bald statement contained in the contempt petitions that violence and coercion was resorted to by members of the party headed by respondent No. 4 has remained unsubstantiated because except the newspaper reports no material has been produced before the Court giving the names and other relevant particulars of the persons who are said to have indulged in forced closure of shops and business establishments on 1.10.2007 and no other evidence has been produced to show that respondent No. 4 had, directly or indirectly, encouraged the members of his party to enforce the call for cessation of work which has been prima facie treated by the Courts as call for bandh. Therefore, respondent No. 4 cannot be accused of having engineered violation of the Court's order. 31. Insofar as respondent No. 6 is concerned, we find that the only material produced by the petitioner in Contempt Petition No. 262 of 2007 is in the form of xerox copies of newspapers and tape of the edited version of speech which is said to have been telecast on Jaya T.V. on 1.10.2007 and 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors. AIR1975SC1788 , a three-Judge Bench while considering the question whether the appellant was guilty of promoting feeling of enmity between two sections of the society, examined the question of admissibility of tape recorded speech, referred to the judgment in R. v. Maqsud Ali (1965) 2 All ER 464 and observed: We think that the High Court was quite right in holding that the tape-records of speeches were documents , as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act. 34. We may now notice some judgments in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country - undoubtedly a powerful weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute. 38. The judgments on which reliance has been placed by Shri S. Guru Krishna Kumar do not have any direct bearing on this case. In A. Sanjeevi Naidu's case, the Court interpreted the provisions of Section 68C of the Motor Vehicles Act, 1939 and held that when a civil servant takes a decision, he does not do it as a delegate of his Minister but on behalf of the Government, though it is always open to a Minister to call for any file in his office and pass order or issue directions to the officers in his Ministry regarding the disposal of Government business generally or as regards any specified case. In Azhar Ali Khan's case, the Court held that compliance of orders or directions given by Court to Government or its instrumentalities cannot be avoided merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? The historic phrase 'a Government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. Compliance with decisions of this Court, as the constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by State and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyse the supreme law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years. Lincoln's appeal to 'the better angels of our nature' failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was indispensable having regard to the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on the land unless it be -- and that must be the reasonable presumption -- that the Government itself was not too anxious to prevent it. It is not merely positive acts of violation but also surreptitious and indirect aids to circumvention and violation of the orders that are equally impermissible. If reasonable steps are not taken to prevent the violation of the orders of the Court, Government cannot be heard to say that violation of the orders were at the instance of others. The presumption is that the Government intended not to take such preventive steps. In the facts and circumstances of the case, we are unable to persuade ourselves to the view that the Government was helpless and the situation that had developed was in spite of all reasonable steps taken by the Government. Indeed there is no indication that the Government bestirred itself to take any steps, reasonable or otherwise, to prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... macy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law, the litigant can sue the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which call was given by five political parties for cessation of work. It is also borne out from the affidavit of respondent No. 1 that on 24.9.2007 itself the said respondent had issued instructions to all the officers to ensure that law and order and essential services are maintained and the general public is not inconvenienced due to the call given by political parties for cessation of work. On 30.9.2007, respondent Nos. 1 to 3 gave detailed instructions to all the officers to ensure that the public is not put to harassment, the government and private properties are not damaged, supplies of essential services like water, electricity, telecom, railways etc. are not disrupted, supply of milk etc. is maintained and business and other commercial establishments are provided protection. Efforts were also made to ensure that operation of transport services is not affected. Respondent No. 5 had monitored operation undertaken by the departmental authorities for restoring normal operation by the State Transport Corporation. It is, thus, evident that respondent Nos. 1 to 5 did not disobey the restraint order passed by this Court and respondent Nos. 1 to 3 took all the steps necessary for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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