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Judgment
Ravi S. Dhavan, C.J.—This is a case where the Chief Minister has escaped contempt proceedings by the skin of her teeth, so to speak, by the grace of the Court. She, that is the Chief Minister, and her husband, the leader of the Party, communicated with the Chief Justice, the presiding Judge of the Bench, in a pending matter. What was the matter which gave an occasion to telephone the Chief Justice on the conduct of Court proceedings? The matter is what has now resulted in an Appeal of the Chief Secretary, an appeal against an indictment which convicted him to custody and prison in a pending case, in the origins of which the Chief Secretary had no part. Insofar as the indiscretion of the Chief Minister and her consort is concerned, in speaking to the Chief Justice, the Court thought it best to defuse the situation, avert a crisis, and be aware of the ground realities of the functional politics in India, Bihar particularly. The impulsive action was noticed and forgiven in an order, but the issue was attempted to be opened again on more than one occasion. Others brought in causes to keep the contemptuous situation alive, and the Advocate General of the State, even with his Chief Minister in trouble, apparently could not care less, as not appearing in Court has been second nature to him for years. Insofar as the Advocate General is concerned, probabilities will never give him another opportunity to defend the very Chief Minister who made him the Advocate General, and to defend whatever was to be said. Instead, he showed his back to the Chief Minister and the Court. The Court rose to the occasion with the view that while the complexity of politics in Bihar, with the fabric of politics woven with intrigue, one phone call should not be taken so seriously-especially considering that the Chief Justice was in no way influenced by anything said or done by the Chief Minister or her husband. He was already aware that this was an unusual case. The Chief Justice was also not unaware that many advisors were sitting in the darbar of the Chief Minister when the call was made. This perhaps could become the subject of inquiry of a unique kind. The Advocate General has given enough provocation to insult the Constitution of India in not discharging his functions in the very institution where he has been posted as Advocate General. But who were those who were present when the telephone call was made? An emotional Chief Secretary was there, some others were there too, who must have given advice to carry out this very unwise action of telephoning the Chief Justice. Who were these people, who couldn''t come to Court to hold the brief for the Chief Secretary, but were puppeteering behind the scenes? Will this be kept as a secret? It will only be a matter of time that the bubbles will surface. But the Court is not about to get involved in the mediocrity of the advice or the mis-placed loyalty by a cowardly advisor who advised the Chief Minister to telephone the Chief Justice.
Now, to the business of the Chief Secretary''s appeal.
The day before yesterday an exasperated Chief Secretary was at the Bar of the Court. The Chief Secretary of the State is physically impaired, he says that he has to suffer this for a lifetime. A prolonged use of steroids, due to medical advice rightly or wrongly given, has left him with swelling arthritis in his knees, and it can be seen that he has difficulty in walking into Court and out of it. But for a surgery recently, he says he was half blind, and he must put a medicine into his eyes every half hour. Why does the Court mention this? It is in the order of the Hon. Judge against whom the Chief Secretary appeals, that a partially blind Chief Secretary at the Bar of the Court could not read his own handwriting until a tear-inducing fluid could be put in his eyes to give partial normalcy of vision. An exasperated Court headed by a learned judge, whatever must have been the circumstances of that day, compacted in the last half hour before the Court rises, saw a sentence on the Chief Secretary that he be taken into custody. It was a sentence. It was an indictment. It was the displeasure of the Court, which at the end of the day sent the Chief Secretary into the office of the Registrar General to fill in a Bail Bond as a temporary reprieve so that he could think on what he should do next. Let us forget the telephone call, which came next in time.
What exactly was the exasperation of the Court, that its entire wrath came on the Chief Secretary?
Why did the State Counsel pass the buck unto the Chief Secretary, when he was fully conscious that the Chief Secretary was partially blind and could not read? This was pushing the Chief Secretary into trouble. What kind of government does not defend its Chief Secretary? This case could have become a crisis, but what were its origins?
Nothing but a petty appointment not made according to norms. Norms were just not there for the government to work. The norms had to be laid down. This alone shows how the government functions. But whatever and whenever appointments were not made in 1999 or immediately thereafter, or of the Government which ran or runs on favour and fear, or the case which was being decided out of which the contempt proceedings arose, the Chief Secretary had nothing to do with it. He was neither a party in the Writ Petition, nor in the contempt proceedings before the learned judge where the Secretary who ought to have been hauled up for contempt, escaped, while the Chief Secretary got caught in the trap. The Court will call the conduct of the Chief Secretary to take a whip lashing, like a scape goat, to save an erring secretary. Contempt is a matter of strict proof liability. Of the Secretaries who could be involved from the day when the order was passed, and off endingly ignored, there were seven secretaries. Three do not come into the picture, four do. The responsibility ties somewhere between the four. During the last proceedings, sizing up the situation, the Court asked the undefended Chief Secretary at the Bar, by putting its inquiries from a senior Secretary, present in Court, acting as friend of the Chief Secretary in these proceedings, that did those bureaucrats for whom the Chief Secretary has taken all this tension-, embarrassment, even to the point of being put in custody with an indictment of contempt, had the grace to apologize to their captain, the head of the administration, the Chief Secretary? They had not. The Court suggested to this aide and friend of the Chief Secretary watching the proceedings on the latter''s behalf, that these bureaucrats must show their grace now to mitigate the contemptuous situation. In fact they are in contempt, and must get out of it, not before this Court but before the learned judge before whom the original civil contempt proceeding is pending.
It appears that within a day the Secretaries concerned apologized to the Chief Secretary for the inconvenience he had suffered in the contempt proceedings in which they were answerable, but the Chief Secretary got booked. These Secretaries have apologized for their acts in not coordinating and permitting a contemptuous situation to happen. Good governance lies in coordination. Absence of co-ordination does lead to conflicts. These contempt proceedings are a living example. But, one Secretary amongst the four is on a high horse. He does not come to Court to be at the side of the Chief Secretary. In other matters, even when the Court calls him, he tells the State Counsel, through his Personal Assistant, that the Court should be told he is busy in a meeting. Some good State Counsel, well steeped in correct conventions, don''t hold the brief for such bureaucrats. Others side with them. And for the top bureaucrat, in the present case the Chief Secretary, there are no takers for his defense, neither within the defaulting colleagues nor among state attorneys.
By and large in this appeal of the Chief Secretary, there has been an interface between him and the Court directly. When, on Wednesday last, the Court found that Counsel would not appear, and by Counsel the Court means the Advocate General, as these proceedings do have a story which goes into the telephone call of the Chief minister, the Court thought it best to defuse the crisis again, and put it up after a month. An extremely tense Chief Secretary, through his friend, made an appeal to the Registrar General to let the case remain on board, and the Chief Secretary would personally argue the case, with the assistance of one of his colleagues. The Case was left on the list. Too much has happened in this case, and it must see a conclusion either way. The Court must also see the ground realities. The boorishness of the Advocate General is one such ground reality. And yesterday the Chief Secretary could not appear. But there is no occasion for the Court to take exception to this. Bihar is suffering severe floods. A senior bureaucrat who pleads for the Chief Secretary says that even he could not locate the Chief Secretary until 1:00 a.m. yesterday. The Chief Secretary, he said, most of the time was at the hangars at the airport, coordinating relief efforts and the airdropping of supplies which the Indian Air Force is conducting, to assist the State government. He explained the absence of the Chief Secretary. It is understood that duty calls and other peoples'' lives are more important than the captain''s affairs, as he seems to fighting a battle all around with uncooperative bureaucrats, an advocate general who would not assist, and the demands of the administration of a State suffering floods and other disruptions.
The Court has taken the version on what happened on the day when the Chief Secretary was booked for contempt, it was 15 December 2003. If it was contempt in the face of the Court, as the learned judge has recorded, it was criminal contempt. Even the opposing Counsel explained that the proceedings got acrimonious and tempers flared, with the flak coming on the Chief Secretary. So much so that at the end of it all, with all the handicaps which the Chief Secretary was facing--problems with vision, barely able to stand--the Chief Secretary virtually expressed: Then send me to jail. It was an expression of ultimate frustration.
If the Chief Secretary was in contempt, then there was more contempt expressed by the State Counsel who was right there and could not assist the Court and the presentation on behalf of the State. And in fact, was passing a sarcastic submission, that he cannot read the blind man''s scrawl of the office noting, and it would be best read by the blind man himself. This is reference to a visually impaired Chief Secretary, who at that time in fact could not read, and the State Counsel''s evidence was corroborating the situation, but with sarcasm. Thus, the weight of a pressured Court, blew. The Chief Secretary went into custody.
The Court feels that enough should be enough, the Chief Minister must be advised that because of the indiscretion of her attorneys, from the Advocate General down, for those who do not act faithfully on their brief, the Chief Minister is paying the price, the very heavy price, of misunderstandings in Court. In this very order which has been appealed and other orders recorded in the contempt proceedings, the learned judge has observed that but for his patience, he would have issued a notice to the ministers to the cabinet and the Chief Minister. What causes such conflict in Court in a petty matter arising out of following a Court decision about an appointment? Why should things come to this pass? This conflict within the portals of the government is one part, the other half is generated by the State Counsel, some of them, and thoroughly encouraged by an absentee Advocate General. It is not insult to the Court, it is insult to the Constitution of India, and vicariously the situation falls on the government that it insults the nuances of administration and the Constitution. There should be peace in proceedings before the Court, the submissions of any party, State not excluded, should be in humility. The Court, is for the people. The Government is of the people.
It was no fault of the Chief Secretary, Mr. K.A.H. Subramanian, I.A.S. So many factors have contributed to the explosive atmosphere of the Court on that day, and yet behind that is something more deep and sinister which has to be examined by the government very deeply. The Government may be of the people of today, but it cannot lose its modesty and humility, and the Secretaries who were virtually responsible for this situation, wherever the strict proof responsibility may lie, may they be judged and whoever turns out responsible, be recognized. In this episode, in the totality of circumstances, whether bureaucrats or State Attorneys, all responsible should be ashamed of themselves.
These proceedings in contempt MJC No. 3405 of 1999 [reported in Ram Krit Singh Vs. The State of Bihar and Others, against Chief Secretary, Mr. K.A.H. Subramanian, I.A.S., must come to a close. Closed, and, thus, quashed. Appeal allowed.
Other proceedings as to who exactly, one or more, committed contempt on a strict proof liability, and the respondents on the writ petition or such of those who did not honour the order of the High Court, will continue to face the contempt proceedings before the learned judge. And the Hon. Chief Minister may be advised, for such would be advice by this Court, that she may be so kind as not to telephone the Chief Justice or the judges in a pending matter, and instead should take care to control the Advocate General who is her spokesman, and the Government''s spokesman. Between these indiscretions someday there could be a Constitutional crisis which this Court has, in this case, defused and diverted.