Contempt Power Not Shield To Choke Citizen’s Voice: Madras High Court Quashes AG's Consent For Action Against S. Gurumurthy

“In a democracy driven by free speech, the Court cannot seek the comfort of the cocoon or aim to insulate itself from criticisms, just or otherwise. Contempt power is not a shield to choke the voice of the citizen in a free country,” the court said.

Justice N Seshasayee added that the basis for contempt jurisdiction is to preserve public confidence in the judiciary but it is important to ensure that the power is not used as a privilege by the court to roam free. He added that the judiciary should speak through its performance and pass the scrutiny of the citizens with the quality of its performance. Thus, he added that the courts should not be hyper-sensitive to every statement made against the institution and waste time on it.

“Contempt-power is not a privilege for the Court to roam free, but is a tool to trim the social psyche in meddling with the public confidence in the institution. Public confidence is the anchorage on which the majesty of the courts rests, and the public confidence will be best served only when the Courts realised its Constitutional obligations to the people of this country, and pass the scrutiny of its citizens with the quality of its performance. The judiciary should let its performance speak, and it has always spoken through its performance,” Justice Seshasayee observed.

The court was hearing a plea moved by Editor of Thuglak Tamil Magazine S. Gurumurthy against Advocate General R Shanmugasundaram’s order recalling the order of his predecessor declining consent for initiating contempt proceeding against Gurumurthy.

Background

In a public meeting held on January 2021 during the anniversary celebration of the magazine, Gurumurthy was alleged to have made remarks against the judges of the Supreme Court and other courts saying that the judges are appointed by politicians by extraneous means.

S Doraisamy, a senior member of the Madras Bar, considering the statement to be an affront to the majesty of the court, had filed a petition under Section 15(1) of the Contempt of Courts Act, 1971 seeking leave to initiate criminal contempt proceedings against Gurusamy. Senior Advocate Vijay Narayan, then Advocate General had however declined sanction saying that the statements were made impromptu and that there was no intention to scandalise court.

Following this, Doraisamy filed an IA seeking to recall the order. Advocate General R Shunmugasundaram, who later took up this IA recalled the earlier order and restored the contempt petition. Challenging this order, Gurumurthy had approached the High Court.

Senior Advocate Mahesh Jethmalani, appearing for Gurumurthy, argued that the petition for recall was not maintainable as the AG did not have the power to review earlier order. Further, it was contended that even if leave was to be granted, as per Section 20 of the Act, it was obligatory to grant leave within one year and this time had already passed in the present case. Lastly, it was also submitted that Gurusmurthy had already issued regret.

On the other hand, Doraisamy argued that the writ was not maintainable for not impleading the AG. It was also submitted that the AG’s power was neither judicial nor statutory but an administrative power and thus, he had an inherent power to recall the order to correct own mistakes and error.

The court however rejected this submission. The court observed that though the Contempt of Court Act did not provide for appeal or revision, Doraisamy was not remediless when he sought to recall the order as he could have sought judicial review under Article 226 of the Constitution.

The court observed that a prayer for recall was a prayer for review in disguise. Further, the court noted that the statute allowed only a procedural review of an order and not a substantive review. However, looking into the petition to recall, the court was satisfied that it could not be remotely termed as one seeking procedural review/recall. Thus, the court opined that the order recalling the earlier order was without jurisdiction.

“Consequently, none of the grounds raised in the petition bring the case within the four grounds for procedural review set out in Budhia Swain, supra. The impugned order dated 27.09.2021 is, therefore, clearly without jurisdiction and this Court necessarily needs to intervene,” the court said.

Thus, the court allowed Gurumurthy’s plea and set aside the impugned order of the AG.

Counsel for the Petitioner: Mr.Mahesh Jethmalani, Senior Advocate Assisted by Mr.Ramaswamy Meyyappan & Mr.Ravi Sharma

Counsel for the Respondent: Mr.S.Doraisamy (Party-in-Person)

Citation: 2023 LiveLaw (Mad) 301

Case Title: S Gurumurthy v S Doraisamy

Case No: W.P.No.2187 of 2022