S.N. Andley, C.J.
(1) This information which has erroneuously been numbered by the office of this Court as Criminal Original No. 51 of 1973 has been furnished by Anil Kumar Gupta of New Delhi as he considered it his duty to draw the attention of this Court to the act of respondent No. 1 (Mr. K. Subba Rao, Ex-Chief Justice of India, Bangalore) and respondent No. 2 (Mr. Kuldip Nayar, The Editor, The Statesman, Barakhamba Road, New Delhi) that respondent No. 1 wrote and got published an article and respondent No. 2 published the aforesaid article in the issue of the Statesman dated May 14, 1973 styled 'The Supersession of Judges and that the aforesaid acts of the respondents amount to contempt of Court and praying that this Court should exercise its powers under Article 215 of the Constitution and/ or Contempt of Courts Act, 1971 to issue notices to the respondents and upon hearing them to hold them guilty of gross contempt of this Court and to punish them. Concededly the informant. Anil Kumar Gupta, has no locus standi to file a petition under section 15 of the said Act as that can be done only by the Advocate-General or any other person, with the consent in writing of the Advocate-General. In asmuch as this information was styled as a petition by the office it was placed for admission before this Bench and we heard the counsel for the informant. For the aforesaid reasons, what I have to consider is whether in the circumstances of this case as disclosed in the petition and the attending circumstances, this Court should of its own motion issue a notice to the aforesaid respondents. Before this question is examined, I would narrate shortly the facts which have led up to this petition.
(2) On April 26, 1973, the then Chief Justice of India demitted his office and in his place the present Chief Justice of India (Mr. Justice A. N. Ray) was appointed. Mr. Justice A. N. Ray was fourth in terms of seniority of Supreme Court Judges and the judges who were senior to him were Justice J. M. Shelat, Justice K. S. Hegde and Justice A. N. Grover in the order mentioned. The appointment of the present Chief Justice of India created a public controversy of a wide magnitude inasmuch as it was said that the aforesaid three senior judges had been superseded in disregard of an established convention of 25 years standing and even otherwise the appointment was unconstitutional. It is alleged in the additional affidavit annexed to the information that the Times of India, a daily newspaper, of April 27, 1973 contained a news item that the appointment of Mr. Justice A. N. Ray as Chief Justice of India may be challenged. On May 10, 1973, the Statesman of which respondent No. 2 is the editor published the filing of a petition in this Court by J. M. Gupta (Civil Writ No. 5B7 of 1973) challenging the appointment of the present Chief Justice of India and this news appeared in various national dailies. Then in its issue dated May 14, 1973 the Statesman published the aforesaid article by respondent No. I criticising the appointment.
(3) At the time of hearing, counsel for the informant frankly stated that he was not pressing for a notice to respondent No. 1, Mr. K. Subba Rao, as he was not aware whether the offending article had been written before or after the filing of the aforesaid writ petition and, thereforee, he would press for a notice only against respondent No. 2, Kuldip Nayar, who published the same reserving his right to move for a notice to respondent No. 1 on ascertaining facts by disclosure or otherwise as to when the offending article was written.
(4) Counsel for the informant took us through various decisions reported in re: Him Lal Dixit and two others (1955 (1) Supreme Court Reports 577), Saibal Kumar Gupta and others v. B. K. Sen and other : 1961CriLJ749 , Surat Singh v. Des Raj Chowdhry (1968 Delhi Law Times 1), Brig. E. T. Sen v. Edtata Narayanan and others 1969 DLT 348 and re: P. C. Sen : 1970CriLJ1525 and, upon a suggestion from this Bench, also referred to the decision of this Court in Digvijaya Narain Singh v. A. K. Sen I.L.R. 1971 Delhi 14 I do not consider it necessary to deal with all these cases. The case reported in 1955 (1) SCR 577 was a case of suo motu notice. The case : 1961CriLJ749 , was a case on an application by a party to the litigation and so were the cases reported in other cases mentioned here-in-above.
AShas been held in P. C. Sen's case (supra),- 'Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal, is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice.'
Under the Contempt of Court Act, 1971, criminal contempt- that is what is alleged against the respondent-means,-
'THEpublication (whether by words, spoken or written, or by sign, or by visible representations, or otherwise) of any matter 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 interfere or tends to interfere with, the due course of any judicial proceedings; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.'
(5) I think in this case the informant has not disclosed to the Court in his information the furore that was created throughout the length and breadth of this country amongst all manner of its inhabitants upon the appointment of the present Chief Justice of India disregarding the order of seniority. The action of the President was criticised in and by certain quarters and hailed in and by others. Ministers and Members of Parliament made statements in and outside Parliament for one or the other of the views. Various Bar Associations in the country took up the matter and expressed divergent views with regard to the legality as also the propriety of the appointment. Speeches were given, articles were written and hundreds of letters by members of the public were also written. I think I .am justified in taking judicial notice of all these facts and to say that the matter of the appointment of the present Chief Justice of India became a matter of great national importance. Another such matter was A. K. Sen's matter (supra) which was dealt with by a Full Bench of this Court. Khanna, C. J. (as his Lordship then was) made a very weighty observation to which the other members of the Bench subscribed. I cannot do better than to quote this observation :-
'THEREis also one other aspect of the matter to which we would like to advert. A matter of great national im- portance may on occasions agitate vast sections of the population. Such a matter is bound to be discussed on the platform and in the press; the right to discuss being inalienable and the very essence of free and democratic society. The public discussion of that matter, in our opinion, cannot necessarily be stifled because of the filing of a suit by an individual in a Court of law about that matter of national importance. To hold otherwise would result in the startling situation wherein any individual may place a blanket ban and embargo on public discussion of matters of national importances by just filing a suit in a court of law about those matters. The correct approach in this respect, in our opinion would be that if the matter is ex fade of a judicial nature, any expression of opinion about the matter, which has to be decided by the court of law, would be actionable. To take an illustration, suppose A is accused of the murder of B and the murder has nationwide repercussions. Any condemnation of the murder of B would not amount to contempt of court, but any observation made by speech or writing in public on the subject whether A is guilty of the murder of B or not would attract the law of contempt of court, as that is a matter which ex fade has to be decided by a court of law. As against that, there may be matters of national importance which are ex fade not of a judicial nature. In such a case, the filing of a suit would not have the effect of stifling all public discussion of that matter of national importance.'
(6) For the purpose of considering whether I should take notice of this information and take action as prayed, I am assuming that the impugned article covers certain aspects which may have to be decided in Civil Writ No. 587 of 1973 by this Court. The fact is that the appointment of the present Chief Justice of India became a matter of great national importance with respect to which, as stated already, ministers, parliamentarians, jurists, professors of Constitutional law, Bar Associations and members of the public expressed divergent views which were given wide publicity not only in this country but also abroad. Statements and brochures were issued on either side criticising or justifying the appointment.
(7) One curious argument which has been addressed is that the article in question purports to be by Mr. K. Subba Rao who had held office as a Judge of the Supreme Court and retired as the Chief Justice of India and as such he is precluded by clause (7) of Article 124 of the Constitution to plead or act in any Court or betore any authority within the territory of India. On this provision, an argument has been based that inasmuch as Mr. K. Subba Rao has given his interpretation as to clause (2) of Article 124 of the Constitution while the aforesaid writ petition is pending in this Court, he has contravened clause (7) of Article 124. In my view, the argument is only to be stated to be rejected. Writing an article or expressing an opinion outside Court cannot by any stretch of imagination amount to pleading or acting in any court or before any authority within the territory of India.
(8) It is easily conceivable that in the large number of Courts that there are in this country there must be numerous matters wherein the interpretation of one or the other Article of the Constitution is the subject matter of adjudication. It cannot be suggested with any reasonableness that a commentator of any provision of the Constitution is precluded from writing an article for expressing his opinion on any provision of the Constitution unless he satisfies himself that the particular provision is not the subject matter of adjudication in any Court in this country. All progressive thinking will have to stop if this argument of the informant were to be accepted.
(9) In view of the fact that the matter of the appointment of the present Chief Justice of India created an issue which was discussed and spoken about to such an extent, the matter cannot be said to be one which is ex facie of a judicial nature. For the aforesaid reasons, no action as prayed is called for against any of the respondents.
(10) The office is to take note that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the. judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in consultation with the other judges of the Court whether to take any cognizance of the information. The office is directed to strike off the information as 'Criminal Original No. 51 of 1973' and to file it.