Paragraph numbers below are the court’s original numbering, recovered from the source text.
5. The qravamen of the charge in these contempt petitions is that Sri Kalyan Singh, the then Chief Minister of the State, in view of his ideological and political affinity with the Bharatiya Janta Party and the E Vishwa Hindu Parishad and their commitment to the building of Sri Ram Temple, deliberately encouraged and permitted the grossest violation of the Courts' orders. The defence in substance, is that the constructions were initially of the nature of a 'levelling operations' done by the State Government for F enabling the parikrama facilities for the pilgrims. However later the large congregation of Sadhus who had assembled at the land took upon themselves to make the constructions and that even those constructions which ·were in the nature of a platform did not amount to permanent structure such as were prohibited by the order of the Court.
6. The questions that therefore arise for consideration are : (i) Whether the undertaking given. by the Chief Minister before the National Integration Council which was in terms recapitulated and incorporated in the order dated 15th November, 1991 of this Court could be said to be an H c ,E (1994) SUPP. 5 S.C.R. undertaking given by the Chief Minister personally or was merely an undertaking on behalf of the U.P. Government; (ii) Whether there were any construction of a permanent nature carried on the land in wilful disobedience of the orders of the Court; (iii) Whether these constructional activities were carried on by or at the instance of the State Government or its authorities or were done in connivance with and assistance and encouragement of the State Government; or were they carried out inspite of all reasonable steps taken in that regard by the State Government and the Chief Minister to prevent the same; and (iv) Whether the State Government and the Chief Minister were not liable for contempt for any alleged wilful disobedience of the orders of this Court.
7. The purport of the defence- as gatherable from the various affidavits and counter-affidavits filed from time to time- does not seem to dispute that constructions of a substantial nature were carried out on the land in the month of July, 1992. Implicit in these admissions is that had these works and activities been carried out by the State Government and its authorities, there would be no doubt whatsoever that constitute a flagrant violation of the orders of the Court. What was, however, sought to be pleaded was that the area in question, by a long religious tradition in Ayodhya, attracts a large number of pilgrims and particularly in the month of July which coincides with the period of 'Chaturmas' where a large number of Sadhus congregate to celebrate 'Sarvadev Anusthan'. It was urged that there Pilgrim-Sadhus embarked upon the construction of the cement concrete platform and that the number of their was so large that any coercive preventive action would have triggered off an adverse reaction which might have endangered the safety of the disputed 'Ram Janam Bhumi-Babri Masjid Structure' which was situate in the immediate vicinity and for whose protection the Government stood committed. In view of these conflicting considerations and of the risks involved in the operations Government felt compelled to abstain from any coercive steps to prevent the constructions by the pilgrims. We shall later advert to the merits and bona fides of this version. Suffice it to say here that at no point of time did the Chief Minister seek before Court to be absolved of his undertaking in view of these alleged conditions. They are now put forward as a defence in the contempt action. MOHD. ASLAM v. U.0.1. STATE OF U. P.
8. But it is necessary to say that in a Government of laws and not of A men the Executive Branch of Government bears a grave responsibility for upholding and obeying judicial orders. It is perhaps worthwhile recalling what the Supreme Court of United States observed in William G. Cooper, Member of the Board of Directors of the Little Rock v. John Aaron, (358) US. I where, in his concurring opinion Justice Frankfurter said: "The use of force to further obedience to law is in any event a last "resort and one not congenial to the spirit of our Nation ….. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority C over the law of the Constitution? The historic phrase 'a government of laws and not o_f men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the D Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. Compliance with decisions of this Court, as the E constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyse the supreme law, precludes the maintenance of our federal system as we have known and cherished it for one F hundred and seventy years. Lincoln's appeal to "the better angels of our nature" failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the G Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable." Dicey, in his Law of the Constitution, (10th Edition p. 193-94) said: c "When we speak of the 'rule of law' as a characteristic of our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person."
9. In these formative years of our nation building, it is more important than ever to recognise that in a pluralist society law is the greatest and the only integrating factor. Respect for law and its institutions is the only assurance. that can hold a pluralist nation together. Any attempt to achieve solutions of controversies, however, ideologically and emotionally surcharged, not on the basis of law and through judicial institutions but on the strength of numbers will subvert the fundamental values of our chosen political organisation. It will demolish public faith in the accepted constitutional institutions and weaken people's resolve to solve issues by peaceful means. It will destroy respect for the Rule of Law and the authority of Courts and seek to place individual authority and strength of numbers above the wisdom of law. This is courting disaster, fratricidal wars, civil commotion, disruption of everything that we hold sacred. The highest cherished value of our nationhood which is tolerance will be distorted by such misguided enthusiasm.
10. On the issue whether there was construction massive construction — in violation of the Courts' orders, no other material than the very admissions of the State authorities are sufficient to justify a finding that there were such violation of the Courts' orders. MOHD. ASLAM v. U.0.1. STATE OF U. P. BS In the Chief Engineer's Report appended to the counter-affidavit of Sri A Prabhat Kumar, Principal Secretary to the Govt., Home Department, the following description of the nature of the work occurs:- "Foundation concrete has been laid in three layers as described in the enclosed site map in plan. It was seen on digging from the outer side, that the lowest layer had an B average thickness of 62 cm. the middle layer had an average thickness of 60 cm. and the upper layer had an average thickness of 60 cm., Middle and upper layers have not been laid on the whole of the area in which foundation concrete has been laid on the lowest layer. c Brick wall has been constructed in some part, the height of which is 1.56 meters, on the lowest layer of the foundation concrete, the location of which has been shown in the enclosed site map in plan. The brick work of the wall has been done with cement and .sand-mortar. A brick wall touching the cut in the earth on mount close to the pipe D barricading, has been constructed, the average height of which is 2.25 meters and cement and sand mortar has been used in it. Its location has been shown in the enclosed site map in plan." Commenting on the possible purpose of this structure, Sri Prabhat E Kumar himself says, 'however, according to the statements of those involved in the construction work it was intended to be the first step towards putting up of the "Singh Dwar" of the proposed "Ram Mandir" as and when the same would be constructed." In the report dated 18th July, 1992 by the District Magistrate and F Senior Superintendent of Police, to the Chief Secretary, as to the nature and extent of construction, while admitting the progress of construction, the District Magistrate says:- "On 18.7.1992 at 8.45 to 9.30 a.m. we met Shri Ashok Singal and Shri Onkar Bhave and requested them to have G the work stopped in compliance with order dated 15.7.1992 of the High Court, responsibility for which had been entrusted to us. They informed that at 5 p.m. on 17.7.92 decision was taken in the meeting of about 50 saints at the Digamber Akhara that construction will not be stopped. In view of this decision construction could not be stopped and H c [1994) SUPP. 5 S.C.R. they suggested that talks may be held with members of Temple Renovation Committee."
11. This Court constituted a committee consisting of Sri S. Rai, Registrar_ General, Supreme Court; Professor K.K. Nayar, IIT Delhi; and Professor Arvind Krishan, School of Planning and Architecture, New Delhi. In the report of the Committee, the nature and the extent of construction is described thus:- "The area built-up can be visualised as 5 north-south strips arranged from the east to the west (for the purpose of computation and reference as shown in Appendix A2- l. Areas and dimensions of the first four strips increase step by step from one another. the fifth strip is cut back both in area and dimension. There are 3 layers of concrete in the structure (Annexure Al-2.). The first layer is about 0.62 m. thick and it covers the full area of l 060 sq. m. except for a circular opening of 7 .1 m. diameter in the centre of the 4th strip. On the northern side, the top level of this layer of concrete merges with· the ground. On all other sidei; this layer is only l 0 cm. below the ground level. The second layer is 0.6 m. thick and has an area 0f 560 sq.m., including the circular opening. It is laid on the first layer over the strips 2 to 5 and with set-backs. Both these layers are fairly symmetrical about the east-west axis, except for small irregularities in the dimensions. The third layer is also 0.6 m. thick but covers only a small area of 130 sq.m. Bulk of concrete is laid on the south-west region of the structure. In general, the second and third layers have poor surface finish. The concrete casting work is unfinished. However, if one desires, a modified form of a classical temple can be related to this configuration. As already stated in Paragraphs 2 (a) .04. l to 2 (a) .04.4, the magnitude of the work is such that it could not have been carried out without the use of construction equipments such as water-tankers, cement concrete mixers, concrete vibrators, earth moving equipment etc." There is, therefore, no manner of doubt that substantial work, indeed very substantial work, involving tonnes of cement and concrete deployed MOHD. ASLAM v. U.O.I. STATE OF U. P. with the help of constructional machinery was carried on at the site. The A photegraphs produced by the complainant- which are not disputed- indicate the gathering of workers. A mere perusal of the photographs justifies an inference that the large work force at the site does not consist of mere Sadhus but justifies the inference that professional workmen had been deplo,yed at the site.
12. We must, however, indicates that the report of the Expert Committee headed by Sri S. Rai, Registrar General, was of the month of August, l 992. But the significance of the report as to the nature and extent of work and whether it could be related to the month of July is determined by the fact that on Uttar Pradesh Govt.'s own admission the work had stopped on 26th July, 1992. It is, therefore, permissible t<;> relate the factual C state of construction indicated in the Expert Committee's Report to ,what must be presumed to have been carried out in the month of July, 1992 itself. We have no hesitation in finding that there was massive work undertaken and executed on the land in violation of the Court's orders.
13. The next question is whether these activities were carried on by a D congregation of Sadhus at the site and not by the State Govt. and despite Government's efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the 'Ram Janam Bhumi-Babri Masjid structure' itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any of E the officers as to what reasonable measures the Government took to prevent the inflow of constructional material such as large quantities of cement, mortar, sand, constructional equipment, water-tankers etc. that were necessary for the work. The report of the Expert Committee has indicated that constructional machinery was indispensable having regard to F the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on the land unless it be- and that must be the reasonable presumption- that the Government itself was not too anxious to prevent it. It is not merely positive acts of violation G but also surreptitious and indirect aids to circumvention and violation of the orders that are equally impermissible. If reasonable steps are not taken to prevent the violation of the orders of the Court, Government cannot be heard to say that violation of the orders were at the instance of others. The presumption is that the Government intended not to take such preventive steps. In the facts and circumstances of the case, we are unable to persuade H c SUPa,EME COURT REPORTS ourselves to the view that the Government was helpless and the situation that had developed was in spite of all reasonable steps taken by the Government. Indeed there is no indication that the Government bestirred itself to take any steps, reasonable or otherwise, to prevent large scale building material getting into the site. The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated at his own undertaking tq this Court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence. Indeed, if such reasonable steps had been taken he could not be faulted merely because he did not do the best by the standards of others. In this case, we find no explanation at all apart from the fact that the Sadhus had congregated in that place in large number, as to what steps the Government took to prevent the constructional equipment from getting into site. If any reasonable effort had been made and evidence of that placed before Court, it might have been possible for the Court to assess the situation in the light of that explanation to find out whether such steps had been taken. In the absence, we are constrained to hold that the Government failed to take steps to prevent the grossest violation of the order of this Court. We record a finding accordingly.
14. The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State ofU.P. It was both. There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim 'Crown can do no wrong' has had its influence, a distinction is made between the Crown as such and the Executive. In a recent pronouncement of far reaching impact the House of Lords in 'In re M. v. Home Office', (1994) 1 AC 377, observed (as per Lord Templeman) :- "My Lords Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression "the Crown" has two meanings; namely the monarch and the executive. In the 17th century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary MOHD. ASLAM v. U.0.1. STATE OF U. P. supremacy over the Crown as monarch stems from the fa_ct A that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is B only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as; monarch can do no wrong but judges enforce the law against the Crown as C executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of state involved, in the present case the Secretary of State for Home Affairs. To enforce the law the D courts have power to grant remedies including injunctions against a; minister in his official capacity. If the minister has personally broken the law, the litigant can sue the minister, in this case Mr. Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including E ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of 1,'.0Urt." "My Lords, the argument that there is no power to enforce F the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend, Lord Woolf, G and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt." However, in that case it was found as a matter of fact that there was no personal element involved in the violation at the instance of the Home Secretary, Mr. Baker. Therefore, Lord Templeman observed:- "I am also satisfied that Mr. Baker was throughout acting in his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law. In these circumstances I do not consider that Mr. Baker personally was guilty of contempt." c In the leading speech Lord Woolf said "This was the first time that a minister of the Crown had been found to be in contempt by a court. The finding of contempt was made for not complying with an injunction granted by Garland J. ordering M., who had made a claim for asylum.i_ which was rejected by the Home Office, to be returned to'-this country." "Nolan, L.J., at p. J 11, considered that the fact that proceed~ngs for contempt are "essentially personal and punitive" meant that it was not open to a court, as a matter -of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of a contempt. A purpose of the courts' powers to make findings of contempt is to ensure that the orders of the court are obeyed. This jurisdiction is required that the orders of the court are obeyed. This jurisdiction is req1,1ired to be coextensive with the courts' jurisdiction to make the orders which need the protection which the jurisdiction to make findings of contempt provides." MOHD. ASLAM v. U.0.1. STATE OF U. P. "Normally it will be more appropriate to make the order A against the office which a minister holds where the order which has been breached has been made against that office since members of the department concerned will almost certainly be involved and investigation as to the part played by individuals is likely to be at least extremely difficult, if not impossible, unless privilege is waived (as commendably B happened in this case). In addition the object of the exercise is not so much to punish an individual as to vindicate the rule of law by a finding of contempt. This can be achieved equally by a declaratory finding of the court as to the contempt against the minister as representing the department. By making the finding against the minister in C his official capacity the court will be indicating that it is the department for which the minister is re~ponsible which has been guilty of contempt. The minister himself may or may not ha.ve been personally guilty of contempt. The position so far as he is personally concerned would be the equivalent D of that which needs to exist for the court to give relief against the minister in proceedings for judicial review." "To draw a distinction between his two personalities would be unduly technical. While he was Home Secretary the order was one binding upon him personally and one for the E compliance with which he as the head of the department was personally responsible." In the State of Bihar v. Rani Sonabati Kumari, AIR ( 1961) SC 221 this Court approved the following view of Chakravartti, C.J., in AIR 1952 Cal. 919: "I do not say that in fit cases a writ for contempt may not b; asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision · G in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to H c [1994) SUPP. 5 S.C.R. sequestration which would be a distress warrant directed against the properties of the Government or the Corporation." (emphasis supplied) The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt. 15: We find that the undertaking given by Sri Kalyan Singh was both in his personal capacity and on behalf of his Government. There has been a flagran(breach of that undertaking. There has been wilful disobedience of the order. 16. It is unhappy that a leader of a political party and Chief Minister has to be convicted Of an offence of Contempt of Court. But it has to be done to uphold the majesty of law. We convict him of the offence of contempt of Court. Since the contempt raises larger issues which affect the very foundation of the secular fabric of our nation, we also sentence him to a token imprisonment of one day. We also sentence him to pay a fine of Rs. 2,000. The fine shall be paid within a period of two months. For the sentence of imprisonment a warrant will issue. The contempt petitions are partly disposed of accordingly. A.G. Petitions partly disposed of.