R.S. Pathak, C.J.
1. This is a miscellaneous petition filed by the respondent Board of School Education praying that the petitioners should not be allowed to prosecute, and be heard in, the Supreme Court Application No. 4 of 1974 until they have purged themselves of their contempt of this Court.
2. A writ petition was filed by the petitioners against the Board of School Education and others challenging the selection of certain text books for use in educational institutions in Himachal Pradesh and the rejection of the text books submitted by them. The writ petition was heard by a Full Bench of this Court and was dismissed on May 7, 1974. On June 27, 1974 the petitioners filed a petition (S. C. A. No. 4 of 1974) for a certificate from this Court to enable them to appeal to the Supreme Court. It appears that about this time the first petitioner, Om Parkash, who is said to be the sole proprietor of the second petitioner, Radha Krishan Prakashan published a booklet under the title 'Samik Sahitva' in which some critical references are said to have been made to the judgment of this Court disposing of the writ petition. Upon a petition filed by the Board of School Education for contempt proceedings against the petitioners notice has been issued to the petitioners.
3. The Board of School Education now urges that the petitioners should not be heard on the petition for certificate until they have purged their contempt because, it is said, by publishing the aforementioned booklet they have committed contempt of this Court and have barred themselves from being heard in a proceeding arising out of the same cause as long as they do not purge their contempt. It is contended that by publishing the booklet petitioners have created an impediment in the course of 'justice and they must remove that impediment by nursing themselves of their contempt before they can be heard on the petition for certificate.
4. The first question which arises is whether the contempt which the petitioners are alleged to have committed is of the kind which disentitles them to being heard on the petition for certificate. It will be interesting to trace the origin and development of the rule that a party in contempt will not be heard. The growth of Church organisation which accompanied the decline of the Roman Empire save rise to a corresponding growth in the quantity and variety of the sources of ecclesiastical law. The systematic research of the eleventh Century which was undertaken in order to confine ancient and universally recognised authorities in canon law led to the Decretum of Ivo of chartres in 1095. The systematization of canon law was carried to its conclusion by Gartian who soon after 1140 published his great work ''The Concordance of Discordant Canons.' It was the constant endeavour of the canonists of this period and beyond it to make their system reduce to a minimum the divergence between the law and morals. Although the canon law was primarily concerned with the organisation of the Church and spiritual discipline, nevertheless a great deal of it did affect the daily life of the laity in a veriety of ways, and in the end exerted profound influence upon the development of national laws. Plucknet: A Concise History of the Common Law, 3rd Edn p. 267 et sea.
5. In ancient England, in the struggle for power between the Church and the State, curial jurisdiction was divided between the ecclesiastical Court and the King's Court. The former applied the ecclesiastical law, which included the canon law, and the latter concerned itself with the common law. The separation between the two Courts was effected by William the Conqueror, and it had the unexpected result during the succeeding hundred years that the Church claimed the right to apply the large mass of canon law over a wide jurisdiction. The King was equally determined to impose his own lay law. The two parallel systems of law struggled for superiority over each other over a long period of years, and we are familiar with the conflict which raged between Henry II and Archbishop Becket and ended in the latter's murder.
6. The King's Court was at first concerned with the King's tenants and their feudal rights and duties, and such people could be most surely reached through their feudal holdings. When the common law of the King's Court was becoming the common law of the country it had to deal with very different problems. It became increasingly recognised that its rules and procedures did not suffice to cover the entire range of legal problems. With the growing complication of society, and the development of law beyond the confines of real property, those problems became more acute as the common law failed, because of its main preoccupation with real property, to resolve situations where property holdings did not effectively afford a means of satisfying the requirements of justice and where action was required 'in personam'. The common law was also slow to admit the evidence of parties and witnesses. In the fifteenth century there were complaints that juries were packed, bribed and intimidated. Finally, the technical forms of the common law writs and pleadings and its limited resources for finding of facts and the awarding of judgment produced an urge for a system which was more equitable as well as more effective. The Court of Eauitv came into existence. Persons who desired extraordinary relief addressed themselves to the Kins and his Council, and as the volume of petitions increased they were referred to the Chancellor as a delegate of the Council. This gave birth to what is commonly described as Chancery jurisdiction. Chancery developed into a Court of conscience with a jurisprudence deliberately based, upon that idea. Plucknett: Ibid, p. 159 et seq. The Courts in England, therefore, consisted of the common law Courts, the Chancery Court and the ecclesiastical Court. Their powers in dealing with contempt in relation to the question before us may now be examined.
7. Contempts have been broadly classified into criminal contempts and what are described as contempts in procedure. Criminal contempts constitute interference with the Judges or the course of justice, while contempts in procedure arise from a disobedience of the orders of the Court. In our own country and in our own time, the same broad classification has been laid down in the Contempt of Courts Act, 1971, which speaks of 'Criminal contempts' and 'Civil Contempts'. The common law Courts had a large number of writs to serve their purpose, and two of those writs, of fieri facias and elegit were employed by them for the forcible execution of their orders. On the other hand, the ecclesiastical Court and the Chancery Court did not enjoy that power. The assistance of the common law Courts could not be taken for the purpose because they did not punish contempts in procedure of other Courts. The Chancery Courts issued writs of attachment or orders for committal to imprison parties who disobeyed its orders. The ecclesiastical Court imposed the penalty of excommunication. In addition to those powers of punishment the two Courts adopted the rule of the canon law that a party who had disobeyed their orders could not be heard.
8. So far as the Chancery Court is concerned, as long ago as the year 1618 the Seventy-eighth Ordinance of Lord Bacon, found in Beam's Orders in Chancery (p. 35) laid down that:--
'They that are in contempt ......... arenot to be here (? heard) neither in that suit, nor any other, except the Court of special grace suspend the contempt.'
Cited by Denning L. J. in 1952 (2) All ER 567, 573.
This Ordinance of Lord. Bacon came gradually to be restricted in scope and was confined to cases where a party in contempt came forward voluntarily and asked for an indulgence in the selfsame cause. The rule did not apply to cases where a plaintiff brought his cause to a hearing or a defendant asserted his right to defend himself. As has been held in Ricketts v. Mornington, (1834) 7 Sim 200 and Wilson v. Bates, (1838) 3 My & Cr 197 even if he was in contempt he was allowed to be heard unless an order had been made staying the proceedings.
9. The ecclesiastical Court followed the rule that if a party wag in contempt for disobeying an order his disobedience impeded the course of justice in the suit and the Court could in its discretion refuse to allow him to take active proceedings in the suit until the impediment was removed.
10. The history of the rule that a party in contempt will not be heard has been set out in a very instructive judgment by that eminent Judge, Denning L. J. in (1952) 2 All ER 567 at D. 573 and one is greatly indebted to the considerable scholarship and research to which his judgment bears witness. The modern rule is cited by him in the following terms:--
'It is a strong thing for a Court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy, It is a step which a Court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing its compliance.'
It is evident from the cases cited by penning L. J. that the rule was applied in cases of contempt in procedure only. It was applied in cases where a party had disobeyed an order of the Court, and in order to secure obedience to that order the right of the party to be heard in a proceeding arsing out of the same cause was denied to him until he had purged himself of his contempt. The origin and evolution of the rule, and the nature of the need for it, point strongly to the conclusion that it was intended solely for those cases where contempt was committed by disobedience of the Courts' order, that is to say. in cases of contempt in procedure. It was not adopted as a punitive measure; the object was entirely to secure obedience to the Court's order. For that reason, the rule would be irrelevant in a case of criminal contempt.
11. The act of contempt must be such as to make it difficult for the Court to determine the rights of the parties in a case or to give effect to the orders which it may make. And so, Denning L. J. observed in Hadkinson (supra):--
'Applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobediertce is such that, so long as it continues; it impedes the course of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.'
It will be noted that the principle is applied in the discretion of the Court, and it is not necessarily in every case that it will be applied.
12. What have we here? The contempt alleged against the petitioners is a criminal contempt. It is not a civil contempt or a contempt in procedure. Consequently, there is no occasion for invoking the rule against the petitioners. The Board does not allege that the petitioners have disobeyed any order of this Court by publishing the booklet. Indeed, no such Question can arise because the writ petition was filed by the petitioners and it was dismissed. No positive order was passed against the petitioners.
13. It will also be noticed that the act of the petitioners does not impede the course of justice in the sense of the rule enunciated by Denning' L. J. It is urged for the Board that the publication of the booklet impedes the course of justice because the petitioners intended by making disparaging observations in respect of the judgment of this Court to pressure the Court into deciding the petition for certificate in their favour. Alternatively, it is contended that it can be said to impede the course of justice by prejudicing the Court against the petitioners. I confess I have found considerable difficulty in following this argument. In the first place, there is no evidence of any such intent on the part of the petitioners. And in the absence of evidence the only test which can be applied is what a reasonable person would think to be the effect of such publication. In my opinion, no reasonable person can conceive that by publishing the booklet the petitioners could bend the judgment of the Court in their favour. The booklet, according to the case of the Board itself, does not contain any complimentary observations. And as regards the alternative submission that the intention of the petitioners could have been to prejudice the Court against them by making those observations, no consideration in reason can justify that assumption- Clearly therefore the argument that the publication of the booklet should be construed as an act intended to impede the course of Justice is founded in fallacy. Proceeding further from the stage of intent to that of effect, it appears again to me to be impossible to hold that the effect of the publication is to impede the course of justice. The determination of the truth in the case cannot be influenced by what has been said in the booklet. The expression 'to ascertain the truth' in the rule propounded by Denning L. J. refers to the decision of the controversy between the parties. It refers to material necessary or desirable for determining that controversy. An example is provided by Re Langworth v. (1887) 3 TLR 826 where a bankrupt disobeyed an order to make a statement of his affairs and had deliberately kept out of the way of the Court and his creditors. The entire case of the Board is that by publishing the booklet the petitioners have made it difficult for the Court to ascertain the truth. In judgement. there is no substance whatever in that case.
14. Upon the aforesaid considerations, I am of opinion that the rule that a party in contempt will not be heard cannot be invoked against the petitioners.
15. Another question raised before us is whether the principle can be applied at the stage where notice only has been issued on the contempt petition and the petitioners have not vet been found guilty of contempt. Inasmuch as I have held that the principle is not available in this case, I need express no opinion on this second, question. It may be pointed out in passing, however, that the rule as applied in Chancery in England was never applied unless and until the contempt had been established by attachment or order of committal, and it was when that was done that the party became a party in contempt and the Court would not hear him. Wilson v. Bates, (1838) 3 My and Cr 197 (supra). Whether that is true of the law today is a matter into which, for the reason mentioned above, I need not so.
16. The miscellaneous petition is dismissed with costs, which I assess at Rs. 100/-.
D.B. Lal, J.
17. I agree.
C.R. Thakur, J.
18. I agree.