Kalyaneshwari vs U.O.I. & Ors

Kalyaneshwari ...Petitioner

Versus

Union of India & Ors. ...Respondents

J U D G M E N T

Swatanter Kumar, J.

In our detailed order dated 21st January, 2011, besides

disposing of the Writ Petition No. 260 of 2004 with the directions as

contained in paragraph 16 of that order, we noticed the

contemptuous behaviour of the petitioner NGO and its officials and

had issued show-cause notice to the petitioner Kalyaneshwari and

its Secretary Shri B.K. Sharma, in his personal capacity, which

reads as under:

"Keeping in view the conduct of the petitioner,

particularly, B.K. Sharma, we hereby issue

notice to him as well as the petitioner to show

cause why proceedings under the Contempt of

Courts Act, 1971 be not initiated against them

and/or in addition/alternative, why exemplary

cost be not imposed upon them. Further, we

also call upon the petitioner to show cause

why the Registrar, Government of NCT, Delhi

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be not directed to take action against them in

accordance with law."

In response to this show-cause notice, Shri B.K. Sharma had

filed a response affidavit dated 22nd March, 2011 on behalf of

Kalyaneshwari as well as himself. This is a very short affidavit of

seven paragraphs in which the petitioner has rendered his

unconditional apology and prayed before this Court not to initiate

proceedings under the Contempt of Courts Act, 1971. He further

prayed to discharge the notice of contempt and drop proceedings for

imposition of cost and revocation of license and registration of the

NGO Kalayneshwari. Relevant portion of the said affidavit reads as

under:

"2. THAT deponent herein tenders his

unconditional apology to this Hon'ble Court

with folded hands concerning all actions in

respect of which this Hon'ble Court has been

pleased to issue Show Cause Notice as to why

proceedings under the Contempt of Courts Act,

1971 be not initiated against the Petitioner

and the deponent herein and further as to why

exemplary costs be not imposed upon them

and their license be not cancelled/revoked.

3. THAT deponent herein unconditionally

withdraws each and every averment and

allegation made by the Petitioner in respect of

the Judgment of the Hon'ble high Court of

Gujarat dated 9.12.2004 passed in Special

Civil Application Nos. 14460, 14813 and

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14819 of 2004 titled B.K. Sharma v. Union of

India and others reported in AIR 2005 Gujarat

Page 203. Petitioner further withdraws all

such pleadings made in this regard in the

affidavit filed by the petitioner through

deponent in response to the order dated

13.8.2010 passed by the Hon'ble Court as well

as all the consequent proceedings."

There is no doubt that at the very initial stage, the

respondents have tendered apology and prayed for dropping of the

contempt proceedings. We are not quite certain as to the bona fide

and intent of the respondents in tendering such an apology. For a

Court to accept the apology in a contempt action, it is required that

such apology should be bona fide and in actual repentance of the

conduct which invited initiation of contempt proceedings.

Furthermore, the conduct should be such which can be ignored

without compromising the dignity of the Court. `Contempt' is

disorderly conduct of a contemner causing serious damage to the

institution of justice administration. Such conduct, with reference

to its adverse effects and consequences, can be discernibly

classified into two categories: one which has a transient effect on

the system and/or the person concerned and is likely to wither

away by the passage of time while the other causes permanent

damage to the institution and administration of justice. The latter

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conduct would normally be unforgivable.

Institutional tolerance which the judiciary possesses, keeping

in mind the larger interest of the public and administration of

justice, should not be misunderstood as weakness of the system.

Maintaining the magnanimity of law is the linchpin to the wheels of

justice. Therefore, in certain cases, it would be inevitable for the

Court to take recourse to rigours of the statute.

It is the seriousness of the irresponsible acts of the

contemners and the degree of harm caused to the institution and

administration of justice which would decisively determine the

course which the Court should adopt, i.e. either drop the contempt

proceedings or continue proceedings against the contemner in

accordance with law.

The apology tendered even at the outset of proceedings has

to be bona fide, should demonstrate repentance and sincere regret

on the part of the contemner lest the administration of justice is

permitted to be crudely hampered with immunity by the persons

involved in the process of litigation or otherwise. An apology which

lacks bona fides and is intended to truncate the process of law with

the ulterior motive of escaping the likely consequences of such

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flagrant violation of the orders of the Court and disrespect to the

administration of justice cannot be accepted. In the case of Prem

Surana v. Additional Munsif and Judicial Magistrate [(2002) 6 SCC

722] this Court sternly reprimanded a contemner who had slapped

the Presiding Officer in open court and held that "the slap on the

face of the judicial officer is in fact a slap on the face of the justice

delivery system in the country and as such question of acceptance

of any apology or an undertaking does not and cannot arise, neither

can there be any question of any leniency as regards the sentence."

The rule of law has to be maintained whatever be the

consequences. The `welfare of people' is the supreme law and this

enunciates adequately the ideal of `law'. This could only be

achieved when justice is administered lawfully, judiciously, without

any fear and without being hampered or throttled by unscrupulous

elements. The administration of justice is dependent upon

obedience or execution of the orders of the Court. The

contemptuous act which interfered with administration of justice on

one hand and impinge upon the dignity of institution of justice on

the other, bringing down its respect in the eye of the commoner, are

acts which may not fall in the category of cases where the Court can

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accept the apology of the contemner even if it is tendered at the

threshold of the proceedings.

The Black's Law Dictionary (8th edn., 1999) defines `Contempt'

as, "Conduct that defies the authority or dignity of a Court or

legislature." It also adds that "Because such conduct interferes

with the administration of justice, it is punishable."

This special jurisdiction has to be unquestionably invoked

when the offending acts are intentional by the contemner at the

cost of eroding the system of administration of justice which

practice is necessarily required to be deprecated at the very initial

stage.

In the case of Aligarh Municipal Board v. Ekka Tonga

Mazdoor Union [(1970) 3 SCC 98], this Court said that it is the

seriousness of the irresponsible acts of the contemners and the

degree of harm caused to the administration of justice which would

decisively determine whether the matter should be tried as a

criminal contempt or not.

In the case of M.Y. Shareef v. The Hon'ble Judges of the

High Court of Nagpur [AIR 1955 SC 19], this Court while explaining

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the requirements of genuine apology held as under:

"45.....With regard to apology in proceedings for

contempt of court, it is well-settled that an

apology is not a weapon of defense to purge the

guilty of their offence; nor is it intended to

operate as a universal, panacea, but it is

intended to be evidence of real contriteness."

Similar observations were made by this Court in the case of

L.D. Jaikwal v. State of U.P. [(1984) 3 SCC 405], wherein this Court

held as under:

"6. We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a "licence"

to scandalize courts and commit contempt of court with impunity......"

Making of scandalous allegations against the judicial

system always needs to be discouraged. Moreover, invoking the

extraordinary jurisdiction of the constitutional Courts allegedly in

the name of public interest and using it as a platform for lowering

the dignity of the institution of justice is an act which besides being

contemptuous also is undesirable. This Court, in the case of M.B.

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Sanghi Advocate v. High Court of Punjab & Haryana [(1991) 3 SCC

600], has cautioned against the growing tendency of maligning the

reputation of judicial officers by disgruntled elements who fail to

secure desired orders. While observing that it was high time that

such tendency is to be nipped in the bud, this Court said, "such

causes raise larger issues touching the independence of not only

the concerned Judge, but the entire institution... It is high time

that we realize that the much cherished judicial independence has

to be protected not only from the executive or the legislature, but

also from those who are an integral part of the system."

We have referred to the above judgments of this Court with an

intention to indicate the callous attitude of the contemners despite

the directions of this Court in paragraph 16 of its order dated 21st

January, 2011. Such contemptuous actions of the contemners

have increased with passage of time rather than being reduced.

In the present case, Shri B.K. Sharma has certainly abused

the process of law by filing petitions, under the guise of public

interest, against one business rival at the behest of another. The

writ petition filed by him before this Court was obviously filed with

the intent of creating impediments in the establishment and

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operation of industrial units dealing with the mining, manufacture

and production of Asbestos and its products which are carrying out

their operations in accordance with law and without infringing the

rights of any person.

This Court in the case of Consumer Education and Research

Center v. Union of India [(1995) 3 SCC 42], had pronounced a

detailed judgment giving directions in relation to various matters

pertaining to operation of units engaged in manufacture and

production of asbestos and its products. This resulted in

presentation of a Bill in this regard by the Central Government

before the Rajya Sabha. Despite the detailed directions already

given in the above judgment of this Court and introduction of a Bill

before the Parliament, Shri B.K. Sharma persisted in filing

petitions after petitions praying for complete ban on manufacture,

import and use of asbestos to secure unlawful closure of asbestos

industry for the purpose of settling business rivalry.

Sh. B.K. Sharma had filed a writ petition before the Gujarat

High Court titled as B.K. Sharma v. Union of India, [AIR 2005 Guj

203] in which every attempt was made to prevent respondent No.5

in that case, M/s. Sopai Ltd., from completing construction of its

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asbestos production unit and proceeding further with any activity.

In fact, it was prayed that construction raised by them be

demolished which was declined by the Gujarat High Court. The

Gujarat High Court also declined to accept the prayer for closure of

that asbestos manufacturing unit and held in specific terms that

the petition had been filed at the behest of rival industrial groups

and lacks bona fide.

Shri B.K. Sharma, disregarding the fact that this judgment of

the Gujarat High Court had attained finality on whole factual

matrix, filed Writ Petition No. 260 of 2004 before this Court and

tried to brush aside the judgment of the Gujarat High Court

stating, "Gujarat High Court had failed to apply its mind". Besides

making such irresponsible statement against the judgment of a

constitutional Court, Shri B.K. Sharma miserably failed to explain

and clarify as to why the present petition was filed in face of the

judgment of this court in the case of Consumer Education and

Research Centre (supra).

Shri B.K. Sharma even went to the extent of filing incorrect

affidavits before this Court and the Court was compelled to pass an

order on 27th August, 2010 directing him to explain his conduct in

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reference to the observations made by the Gujarat High Court in

the said judgment.

It was argued before the Court, by several of the respondents,

on different occasions that the whole purpose of filing the present

writ petition was to secure a ban on mining and manufacture of

asbestos which would inevitably result in increase in the demand

of cast and ductile iron products as they are a suitable substitute

for asbestos. It was, thus, argued that the petition before the

Gujarat High Court as well as this petition has been filed at the

behest of the industrial group engaged in production of cast and

ductile iron products.

It is a settled principle of law that contempt is a matter

primarily between the Court and the contemner. The Court has to

take into consideration the behaviour of the contemner, attendant

circumstances and its impact upon the justice delivery system. If

the conduct of the contemner is such that it hampers the justice

delivery system as well lowers the dignity of the Courts, then the

Courts are expected to take somewhat stringent view to prevent

further institutional damage and to protect the faith of the public in

the justice delivery system. In the case of Advocate-General, State

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of Bihar v. M/s. Madhya Pradesh Khair Industries [(1980) 3 SCC

311], this Court took the view that abuse of the process of court,

calculated to hamper the due course of judicial proceedings or the

orderly administration of justice, is contempt of court. Where the

conduct is reprehensible as to warrant condemnation, then the

Court essentially should take such contempt proceedings to their

logical end. There cannot be mercy shown by the Court at the cost

of injury to the institution of justice system.

The respondent-contemners, in their reply-affidavit, have

hardly disputed the observations made by this Court in the show

cause notice issued to them. They have only attempted to tender

an unconditional apology for their various acts and omissions

which certainly were prejudicial to the administration of justice and

have even adversely affected the rights of the other parties in the

disguise of a petition filed in public interest. The contemners have

abused the process of law by instituting various petitions under the

garb of `Public Interest Litigation' and have succeeded, at least

partially, in damaging the asbestos industry in the country. They

even withheld the facts from the Court which were within their

personal knowledge. The examination of the factual matrix of the

present case and conduct of the respondent-contemners,

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particularly the reply filed by them, places it beyond ambiguity that

they have committed the following acts and omissions intentionally,

which have undermined the dignity of this Court and the justice

delivery system:

(a) The contemners have abused the process of law to the extent

that it impinged upon the dignity of the justice delivery system as

well as prejudicially affected the rights of other private parties.

(b) The contemners have withheld material facts from the Court

which were in their personal knowledge. While withholding such

material facts, they have also persisted upon filing petitions after

petitions in the name of public interest with somewhat similar

reliefs.

(c) The contemner, B.K. Sharma, has made irresponsible remarks

and statements against the Gujarat High Court without any

justifiable cause in law.

The public interest litigation [Writ Petition (C) No. 260 of 2004]

(d)

instituted by the contemner lacks bona fide and, in fact, was

instituted at the behest of a rival industrial group which was

interested in banning of the activity of mining and manufacturing

of asbestos and its products by obtaining certain orders and

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directions from this Court. A definite attempt was made by the

contemners to secure a ban on these activities with ultimate

intention of increasing the demand of cast and ductile iron

products as it has come on record that they are some of the

suitable substitutes for asbestos. Thus, it was litigation initiated

with ulterior motive of causing industrial imbalance and financial

loss to the industry of asbestos through the process of court.

(e) The contemner has also filed petitions and affidavits either with

incorrect facts or with facts which even to the knowledge of the

contemner were not true.

Despite this, the Court has to keep in mind that there is a

duty upon the courts to eliminate the cause of such litigation. The

maxim Justitia est duplex, viz., severe puniens, et vere praevenniens

by its very virtue imposes dual obligation upon the Courts of

considering various facets of severe punishment on the one hand

and really and efficiently preventing crime on the other, with the

ultimate object of maintaining the dignity of law. In other words,

the Court has to balance the quantum of punishment keeping in

view the seriousness of the offence committed by the contemners.

Repeated contemptuous behaviour of the contemners before the

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Gujarat High Court as well as this Court certainly needs to be

deprecated and punished in accordance with law. Even if we were

to take somewhat liberal view, still it is the duty of this Court to

ensure that such unscrupulous and undesirable public interest

litigation be not instituted in the Courts of law so as to waste the

valuable time of the Courts as well as preserve the faith of the

public in the justice delivery system.

The contemners when asked to address the quantum of

sentence, again tendered an apology but none of the contemptuous

behaviour spelled out in our order dated 21st January, 2011 was

denied by the contemners at any stage of the proceedings or even in

their reply affidavit to the show cause notice.

Having given our due consideration to all the relevant factors

and behaviour of the contemners, we have no hesitation in holding

that the contemners are liable to be punished for their offensive and

contemptuous behaviour which has undermined the dignity of the

Courts of law and justice administration system as well as

prejudicially affected the rights of third parties who, in fact, were

not even impleaded as parties in the public interest petitions. They

have squandered the valuable time of this Court which could have

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been devoted more fruitfully in dealing with the pending cases and

matters of greater urgency and importance.

In these circumstances, we direct as follows:

(1) We order and award sentence of simple imprisonment till rising

of this Court to the contemner, Shri B.K. Sharma.

(2) We also impose a sentence of fine of Rs.2,000/- on the

contemners, to be paid within one week from today. In default,

he shall undergo simple imprisonment for a period of one week.

(3) Lastly, we impose a cost of Rs.1,00,000/- upon the contemners

to be paid to the S.C. Legal Services Committee.

(4) We also hereby direct the Registrar of Societies, Government of

NCT of Delhi to take action against the contemner-society,

namely Kalyaneshwari, in accordance with law and submit its

action-taken report, interim or final, to this Court within six

weeks from today.

...................................

......CJI.

[S.H. Kapadia]

...........................................J.

[K.S. Panicker

Radhakrishnan]

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...........................................J.

[Swatanter Kumar]

New Delhi

May 12 , 2011.