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Synopsis

The Madras High Court, on Wednesday, set aside an order passed by Advocate General (AG) R. Shunmugasundaram on September 27, 2021 granting consent to initiate contempt of court proceedings against the editor of Tamil magazine Thuglak, S Gurumurthy, for his remarks regarding the judiciary.

Following a recall petition filed by Advocate S. Doraisamy of Thanthai Periyar Dravidar Kazhagam (TPDK) whose request for consent to initiate criminal contempt proceedings had originally been rejected by the previous AG Vijay Narayan on March 31, 2021, the incumbent AG Shunmugasundaram had recalled the order and granted the consent needed. 

While setting aside the same, the single judge bench of Justice N Seshasayee wrote, "Contempt power is not a shield to choke the voice of the citizen in a free country".

The judge added that "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...unless any action or inaction obstructs the course of justice, there is hardly a need to resort to the power of contempt in a democracy".

He underscored that "courts, therefore, cannot, and should not be hyper-reactive to every statement hurled at the institution, and waste its time on it".

"Where expectations on the judiciary are high, and the dreams the citizens hold are big, the judiciary as an institution cannot escape encountering free speech of lesser quality, content or responsibility," Justice N Seshasayee held. 

The order was passed in a petition filed by S.Gurumurthy under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records and quash the order dated September 27, 2021, by the learned Advocate General, High Court, Madras whereby he had given his consent for initiation of contempt proceedings under Sec.15(2) of the Contempt of Courts Act, 1971 against Gurumurthy. 

Allegations against Gurumurthy were that in he made a speech in a public meeting on January 14, 2021 on the occasion of the anniversary of 'Tughlak', in which, he remarked that the judges in the Supreme Court and other courts were appointed by politicians by extraneous means.

Advocate S. Doraisamy, who filed a petition under Sect. 15(1) of the Contempt of Courts Act, 1971 and sought leave to initiate proceedings for criminal contempt of court against Gurumurthy contended that the said speech of Gurumurthy was an affront to the majesty of the court.  

However, former AG Vijay Narayan, declined sanction while noting that if Gurumurthy's statement was read in its entirety, it could be seen that there was no intention to either scandalise the court or to interfere with the administration of justice.

The very next day of rejection of his plea, Doraisamy filed a recall petition, which was later taken up by AG Shunmugasundaram in September 2021.

AG Shunmugasundaram, on September 27, 2021 recalled the earlier order passed by the previous Advocate General, and restored the contempt petition. 

Before the high court, Gurumurthy's counsel, senior counsel Mahesh Jethmalani argued that the petition for recall was not maintainable in the first place. Reliance was placed on the ratio in Naresh Kumar & Others Vs Govt. (NCT of Delhi) (2019).

Moreover, he contended that in terms of Sec.20 of the Act, even if any leave were granted by the Advocate General, it is still obligatory for the Court to take cognizance of the alleged criminal contempt of court within one year from the date of the alleged commission of the act constituting criminal contempt, however, in the present case, even if it is presumed that the learned Advocate General has the power to recall the earlier order, it was now well beyond the one year time stipulated under Sec.20 of the Act.

"...at any rate, the writ-petitioner has already issued his regret, which aspect has weighed with the then Advocate General when he declined to grant leave," he added. 

On the other hand, Advocate Duraisamy, appearing in person, argued that Gurumurthy's writ petition itself was not maintainable as he had not impleaded the Advocate General, and since AG was a private individual, a writ petition could not lie.

The nature of power which the Advocate General exercises under Sec.15 is neither judicial power nor any statutory power, but merely an administrative power. Hence there vests in him an inherent power to recall the order to correct its own mistakes and errors, he further asserted. Reliance was made to the ratio in Kamalesh Verma Vs Mayawati & Others (2013).

The high court held that "a prayer for recall is but a prayer for review in disguise".

"...where a statute does not provide for review of its order, it may review and recall its order, provided it is only a procedural review and not substantive review and must also fall within the Budhia Swain [(1999) 4 SCC 396] principle," it said. 

Court held that the petition before the Advocate General for recalling the order of former Advocate General could not even remotely be termed as one seeking a procedural review/recall.

Court held that AG Shunmugasundaram's order was clearly without jurisdiction. Therefore, court allowed the petition at hand and set aside the impugned order. 

Case Title: S.Gurumurthy v. S.Doraisamy