Case BriefsSupreme Court

Supreme Court: In the case dealing with willful disobedience of the order passed by the Supreme Court in the year 2008 with respect to the levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972, the bench of Sanjay Kishan Kaul and MM Sundresh*,JJ has held that vicarious liability as a principle cannot be applied to a case of contempt and that the appellants cannot be implicated for alleged action of their subordinates.

The Court noticed that in the present case, it was the specific case of the appellants that they did not violate the directives of the court. Also, there was no material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other.

In Ram Kishan v. Tarun Bajaj, (2014) 16 SCC 204, the Court explained that in order to punish a contemnor, it has to be established that disobedience of the order is “wilful”.

“The word “wilful” introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one’s state of mind. “Wilful” means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a “bad purpose or 9 without justifiable excuse or stubbornly, obstinately or perversely”. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished.”

Taking note of the aforementioned ruling and also the facts of the case at hand, the Court explained that the Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the “willful” disobedience. Knowledge acquires substantial importance qua a contempt order.

“Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge.”

Further, when two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature.

Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings.


*Judgment by: Justice MM Sundresh

Op EdsOP. ED.

The role of the Attorney General of India in the ongoing Bhushan’s contempt proceedings has raised curiosity. This curiosity might be a result of the roles played by recent office bearers which gave a wrong impression that the Attorney General is merely a Government pleader. Some of the media reports go on to question as to why Modi Government is trying to save Mr. Bhushan. Therefore, it is appropriate here to clear the unnecessary clouds hovering over the role of the Attorney General (AG).

The legal minds of the country must be fully aware of the fact that the post of AG is not a Government post. It is a constitutional post. His constitutional obligations are not limited to defend the Central Government but include more onerous obligations as the top most officer of the Court; “to ensure that justice is done to the people of India”. He is also the ex-officio member of the Bar Council of India (BCI) and therefore in a sense, is the head of the Bar. For the same reason and also since the contempt jurisdiction requires his legal acumen as the top most officer of the Court his involvement in the current contempt proceedings in his independent capacity as an AG is beyond questioning.

Though under आर्टिकल 76 of the Constitution of India the AG’s post is held “at the pleasure of the President”, the utility of the office consists in its incumbent being in a position to act quasi-judicially and give competent and independent advice. This is the reason even for Presidential Reference the opinion for AG is sought first, not as Government officer but as the country’s top legal mind. His opinion might be in favour of the government, it might not be.

आर्टिकल 76 is a modified version of Section 16 of the Government of India Act, 1935 and the provision made it clear that the “main object was to secure a legal advice for the Provincial Governments from an officer, not merely well qualified to tender such advice, but entirely free from the trammels of political or party associations, whose salary would not be votable and who would retain his appointment for a recognised period of years irrespective of the political fortune of the Government.” [Extract of the report of the JPC on Section 16 of the Act]

Interestingly, in 1962 Nehru wanted to merge the offices of the Law Ministry and Attorney General as one. He wanted his then Law Minister Ashok Sen to be the AG as well. He even proposed it and sent it across to all bar associations in the country saying that it did not even need constitutional amendment. He wanted to do it because on many occasions the Government’s political move was thwarted by the NEUTRAL legal advice given by the then AG MC Setalvad. Thankfully, the Government had to give up the proposal because of the strong opposition from the Bar and the Bench.