TaxTMI 
TaxTMI 
2024 (8) TMI 1763
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....A. BACKDROP 2. Indian Medication Association [In short "IMA"], the petitioner in the writ petition [Writ Petition (Civil) No. 645 of 2022] has invoked Article 32 of the Constitution of India for raising a grievance against Patanjali, its Managing Director - Acharya Balkrishna and its primary proponent, Baba Ramdev stating that they have been indulging in a campaign of misinformation and disparagement against the modern system of medicine in an orchestrated and systematic manner resulting in misleading the common man. IMA has claimed that despite lodging multiple complaints and submitting several representations to the Union of India and the State Authorities, they have declined to take any concrete action, thus compelling them to approach this Court for relief. B. PROCEEDINGS DATED 21ST NOVEMBER, 2023 3. Notice was issued on the writ petition on 23rd August, 2022. On 21st November, 2023, this Court passed the following order : "2. After some arguments were canvassed by counsel afore-noted, on the serious points emanating herein, at the request of the Court, Mr. K.M. Nataraj, learned ASG has very fairly submitted that he may be permitted to obtain instructions, aft....
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....ings be not issued against them. The relevant extract of the order passed on 27^th February, 2024, is as follows: "3. Today, Mr. P.S. Patwalia, learned Senior Counsel appearing for the petitioners states that his briefing counsel proposes to file some newspaper advertisements in the daily newspaper "The Hindu" published on 04th December, 2023 (i.e. after the date of passing the order on 21st November, 2023) and a You Tube link and transcription of a Press Conference headed by Baba Ramdev and Acharya Balkrishna (Managing Director of the respondent no.5) conducted on 22nd November, 2023 (i.e. on the very next day of the passing of the order on 21st November, 2023). 4. It is submitted on behalf of the petitioners that the aforesaid documents amply demonstrate that the respondent no.5 is continuing to make incorrect assertions and misrepresentations in respect of its various products in the market by describing the said products as a permanent solution to such of the ailments that have been specifically listed in the Schedule appended to the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and the Schedule appended to the Drugs and Magic Remedies (Obj....
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.... PROVISIONS OF DMR ACT AND DMR RULES 6. For purposes of ready reference, the provisions of Sections 3 and 4 of the DMR Act, 1954 are extracted below : "3. Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders .- Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for- (a) the procurement of miscarriage in women or prevention of conception in women; or (b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule, or any other disease, disorder or condition (by whatsoever name called) which may be specified in the rules made under this Act: Provided that no such rule shall be made except- (i) in respect of any disease, disorder or condition which requires timely treatment in consultation with a registered medical practitioner....
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....es sold by it under the names of "BP GRIT", "Madhu GRIT" and "Liva Amrit Advance" and declared that they offer permanent solution for curing ailments such as sugar, BP and liver problems. F. TRANSCRIPTION OF THE PRESS CONFERENCE CONDUCTED ON 22nd NOVEMBER, 2023 10. We may also refer to the transcription of the statements made by Baba Ramdev in a Press Conference conducted by Patanjali on 22nd November, 2023, i.e., on the very next day to this Court passing the order on 21st November, 2023, recording the undertaking given by learned counsel for Patanjali that there shall be no violation of any law relating to advertising or branding of products manufactured and marketed by Patanjali and that no casual statements claiming medicinal efficacy or against any system of medicine will be released to the media in any form. In the said transcription, Baba Ramdev alluded to the aforesaid order passed by this Court and asserted that a group of doctors were making false propaganda claiming that "there is cure for diseases like BP, sugar, thyroid, asthma, arthritis, liver and kidney failure", that they have "discontinued insulin for more than a crore people"; that "children with type-1 dia....
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....e Advertisements) Act, 1954 read with Rule 6 of the Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955. 5. Mr. Mukul Rohatgi, learned Senior counsel appearing with Mr. Gautam Talukdar, learned Advocate on Record accepts notice on behalf of the proposed Contemnor-Baba Ramdev. Complete set of paper book be furnished to the learned counsel within two days. 6. Mr. Mukul Rohatgi, learned Senior counsel appearing for the respondent No.5 and its Managing Director-respondent No.6 states on instructions that reply to show cause is ready and the same shall be filed during the course of the day. Copies thereof may be furnished to the learned counsel for the petitioner as also to the Union of India and the same be filed by tomorrow, i.e. 20th March, 2024. XXX XXX XXX 11. The respondent No.6-Acharya Balkrishna shall remain present on the next date of hearing along with the proposed contemnor-Baba Ramdev." (emphasis added) H. AFFIDAVITS DATED 20TH MARCH, 2024 AND 6TH APRIL, 2024 12. On 20th March, 2024, Acharya Balkrishna filed an affidavit, purportedly in compliance of the order passed by this Court on 27th February, 2024. In the sai....
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....nt. I undertake to always uphold the majesty of law and majesty of justice. 6. That I sincerely regret the issue of advertisements from Respondent No. 5 which is an infraction of the order dated 21.11.2023. I tender my unconditional and unqualified apology in this regard, on my own behalf and that of Respondent No. 5 I never had any intention to violate orders of this Hon'ble Court. I state that no such lapse will occur in future. I will always uphold the Majesty of law. 7. I hereby tender an unconditional and unqualified apology for the press conference dated 22.11.2023 and undertake not to make any public statements which may amount to breach of the undertaking given as recorded in para 3 of the order dated 21.11.2023, therefore, seek apology of this Hon'ble Court for the aforesaid press Conference." I. PROCEEDINGS DATED 10TH APRIL, 2024 14. In an endeavour to avoid appearing before this Court in terms of the directions issued on 19th March, 2024, both, Acharya Balkrishna and Baba Ramdev moved separate applications [IA No. 78328 of 2024 and IA No. 77726 of 2024] for permission to appear virtually on a plea that they had pre-scheduled meetings at Du....
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....after the aforesaid affidavits were sworn by them, i.e. on 31st March, 2024. 3. When confronted with the said position on the last date of hearing, learned Senior counsel appearing for the respondents No. 5 and 7 - proposed contemnors had sought time to obtain clarifications. It has now been stated in the latest affidavits filed by the proposed-contemnors that admittedly, photocopies of the tickets were issued on a date after the affidavits were sworn and the said documents were annexed with the affidavits that were sworn on 30th March, 2024 and filed on 31st March, 2024. Fact remains that on the date when the affidavits were sworn, there were no such tickets issued. It is apparent that the respondents were trying to escape appearing personally before this Court in these proceedings, which is most unacceptable." (emphasis added) J. PROCEEDINGS DATED 16TH APRIL, 2024 16. On 16th April, 2024, both the proposed contemnors were present in Court and after interacting with them, the following order was passed: "1. Mr. Mukul Rohatgi, learned Senior counsel appearing for the proposed Contemnors No.5 to 7 submits that to redeem themselves and demonstrate their bon....
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....s made a statement in the apex court. We are committed to not let such a mistake be repeated ever in future. We reassure you that we shall remain committed to uphold the constitution and dignity of the Hon'ble Supreme Court. Patanjali Ayurved Limited Haridwar, Uttarakhand." K. PROCEEDINGS DATED 23rd APRIL, 2024 8. On 23rd April, 2024, learned counsel appearing for the proposed contemnors stated before this Court that some advertisements tendering unqualified apologies by the proposed contemnors had been published in the press a day before. When the newspaper cuttings were handed over to the Court for perusal, it was noticed that the apologies tendered were in a small box with such a fine print that it was impossible to read the apologies without using a magnifying glass. This attempt to downsize the advertisements, making them virtually illegible, had drawn an adverse comment from the Court. As time was sought to collate and file the documents and issue additional advertisements, the following orders were passed on 23rd April, 2024 : "1. Mr. Mukul Rohatgi, learned Senior counsel appearing for the proposed contemnors submits that some advertiseme....
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....d affidavit sworn by his clients and to the publications carried in various newspapers on 22nd April, 2024 containing their apologies for the breach of the order passed by this Court on 21st November, 2023 and submitted that the apologies tendered by the proposed contemnors this time, were published in bold letters and the font size was legible. L. AFFIDAVIT DATED 16TH MAY, 2024 21. On 14th May, 2024, on a query posed by the Court, time was sought on behalf of the proposed contemnors for permission to file affidavits setting out the steps that were being taken by them to bring down the advertisements of those products of Patanjali, licenses whereof had been suspended by the State of Uttarakhand and for recalling the said medicines sent for sale to stockists and other agencies. The proposed contemnors were permitted to file the said affidavits and orders on the suo motu contempt proceedings were reserved. Following is the relevant extract of the affidavit filed by Patanjali on 16th May, 2024 : "2. That in pursuance of the order dated 10.04.2024 of this Hon'ble Court, the State Government of Uttarakhand cancelled the manufacturing licenses of 14 ayurvedic medicines....
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....vide emails dated 14.05.2024, issued by Respondent No. 5 to advertising agency namely Vermillion Communication Private Limited, Rights Ad Communication Private Limited, Rights Ad Communication Private Limited, Combine Communications Private Limited as well as entities such as Sanskar Info TV Private Limited, Aastha Broad Casting Network Limited and Vedic Broadcasting Limited, necessary instructions have been issued to ensure that no advertisements qua the sale or promotion of the aforesaid 14 suspended ayurvedic medicines/formulations be caried out in any publications either in print or electronic media. A true copy of the emails dated 14.05.2024 sent to Vermillion Communication Private Limited, Rights Ad Communication Private Limited as well as entities such as Sanskar Info TV Private Limited, Aastha Broad Casting Network Limited and Vedic Broadcasting Limited are annexed herewith and marked as ANNEXURE R-1 at pages 10 to 21. II. 1. Respondent No. 5 also issued emails of withdrawal dated 14.05.2024 to all franchise stores, Super Distributors & e-commerce partner (Fit India Organic Private Limited) of the Respondent No. 5 across India for removal/withdrawal of the....
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....Court." M. ARTICLE 129 OF THE CONSTITUTION OF INDIA AND CONTEMPT OF COURTS ACT, 1971 22. 2. Before examining the conduct of the proposed contemnors in the aforesaid background, we may note the relevant provisions of law. Article 129 of the Constitution declares the Supreme Court to be "a court of record" and states that it shall have all the powers of such a court including the power to punish for contempt of itself. The provisions of Contempt of Courts Act, 1971 [For short 'the Act'] and the Rules framed thereunder form a part of a special statutory jurisdiction that is vested in courts to punish an offending party for its contemptuous conduct. It needs no emphasis that the power of contempt ought to be exercised with caution, care and sparingly. The contemptuous act complained of must be such that would result in obstruction of justice, adversely affect the majesty of law and impact the dignity of the courts of law. 23. It must also be understood that contempt proceedings are sui generis inasmuch as the Law of Evidence and the Code of Criminal Procedure, 1973 are strictly inapplicable. At the same time, the procedure adopted during the contempt proceedings must be fair a....
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....rilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice." (emphasis added) 26. In Reliance Petrochemicals Limited v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Others [(1988) 4 SCC 592], this Court observed that : 35. The question of contempt must be judged in a particular situation. The process of due course of administration of justice must remain unimpaired. Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of court means interference with the due administration of justice. (emphasis ad....
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....contempt jurisdiction, it has been observed that : "11. The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi-criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities." (emphasis added) 29. A judicious use of the power of contempt has been underscored in Hon'....
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....n "civil contempt" has been defined in Section 2(b) as follows : "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court". 31. It can be discerned from the aforesaid definition that there are three sets of pre- conditions for holding a person as guilty for committing civil contempt, i.e., (a) there must a judgement, decree, direction, order, writ or other process of a Court; (b) there must be disobedience of such a judgement, decree, direction, order, writ or other process of a Court; (c) such a disobedience to a judgement, decree, direction, order, writ or other process of a Court must be wilful. The fourth is the circumstance where an undertaking is given to the Court and there is a breach of such an undertaking. (Refer : Patel Rajnikant Dhulabhai and Another v. Patel Chandrakant Dhulabhai and Others [(2008) 14 SCC 561]). 32. In Rama Narang v. Ramesh Narang and Another [(2006) 11 SCC 114], this Court expounded on the interpretation of Section 2(b) of the Act and observed that the said provision can be divided into two neat compartments. The first compa....
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....served that the Courts in England have held that the breach of consent decree of performance by refusal to execute an agreement was punishable by way of contempt proceedings. With reference to the second part, in Rama Narang (supra) it was observed that giving of an undertaking is distinct from a consent order recording compromise. In the latter case of violation of compromise, no question of contempt arises, but the party can enforce the order of compromise either by execution or injunction from a Court. However, in the former case, when there is wilful disobedience, contempt application and proceedings would be maintainable." (emphasis added) 34. In Balwantbhai Somabhai Bhandari (supra), the Court further observed as under : "73. An undertaking or an assurance given by a lawyer based upon which the court decides upon a particular course of action would definitely fall within the confines of "undertaking" as stipulated under Section 2(b) of the Act, 1971 and the breach of which would constitute "civil contempt". As held in M. v. Home (supra) relied upon by this Court in Rama Narang (supra) that if a party or solicitor or counsel on his behalf, so as to convey to the....
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....vance of the person who has invoked the jurisdiction of the court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the court has to record a finding that such disobedience was wilful and intentional. If from the circumstances of a particular case, brought to the notice of the court, the court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the court may not punish the alleged contemner." (emphasis added) 36. In Ashok Paper Kamgar Union v. Dharam Godha and Others [(2003) 11 SCC 1], this Court observed that the expression "willful disobedience" deployed in Section 2(b) of the Act means an act or omission done voluntarily and intentionally with a specific intent to do something, which the law forbids or with a specific intention to fail to do something which the law requires to be done. The expression 'willfulness' signifies deliberate action done with evil intent and bad motive or purpose. It should not be an act which requires or is dependent....
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.... or intentionally and with the specific intent to do something which the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose." (emphasis added) 38. To determine as to whether a person is guilty of civil contempt, it is necessary to first hold that the person has willfully disobeyed any judgement, decree, order, writ or any other process of the Court. Of equal significance is a wilful breach of an undertaking given to a Court. Mere disobedience of an order may not suffice to qualify as a "civil contempt" within the meaning of Section 2(b) of the Act. The element of willingness is a prerequisite to bring home the charge within the scope of the Act [Refer : Anil Ratan Sarkar (supra)]. This must not be confused with a wilful breach of an undertaking given to the opposite party in a litigation. While an undertaking given to a party in a litigation whether by way of a settlement / agreement (oral or in writing) or an assurance, does not attract the provisions of the Act, an undertak....
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....ies to a contract to the other, as distinguished from the nutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party. A promise or security in any form." 41. The Osborn's Concise Law Dictionary, 10th Edition defines "undertaking" in the following words : "A person, especially a promise in the course of legal proceedings by a party or his counsel, which may be enforced by attachment or otherwise in the same manner as an injunction." 42. In M v. Home Office [(1992) Q.B. 270], the Court issued a caution on how an undertaking would be treated and observed that : "If a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood." P. QUALIFIED APOLOGY VIS-À-VIS UNCONDITIONAL APOLOGY 43. We may next touch upon the aspect of....
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.... are some of the relevant considerations which would weigh with the Court in deciding such an issue. Where, persistently, a person has attempted to overreach the process of Court and has persisted with the illegal act done in wilful violation to the orders of the Court, it will be difficult for the Court to accept unconditional apology even if it is made at the threshold of the proceedings. It is not necessary for us to examine in any greater detail the factual matrix of the case since the disobedience, manipulation of procedure and violation of the schedule prescribed under the orders of the Court is an admitted position. All that we have to examine is whether the apology tendered is bona fide when examined in the light of the attendant circumstances and whether it will be in the interest of justice to accept the same. 9. The facts which will weigh with the Court while considering acceptance of an apology are the contemptuous conduct, the extent to which the order of the Court has been violated, irresponsible acts on the part of the contemnor and the degree of interference in the administration of justice, which thereby cause prejudice to other parties. An apology tendere....
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....ther innocent persons as a whole, it would be a factor which would weigh against the contemnors; and (b) the stage and time when such apology is tendered." (emphasis added) 46. In Bal Kishan Giri v. State of Uttar Pradesh [], where examining a case of rejection of an apology offered to the High Court by the contemnors who had insinuated bias and a predetermined mind against three Judges of the High Court, this Court observed that : "15. The appellant has tendered an absolute and unconditional apology which has not been accepted by the High Court. The apology means a regretful acknowledgment or an excuse for failure. An explanation offered to a person affected by one's action that no offence was intended, coupled with the expression of regret for any that may have been given. Apology should be unquestionable in sincerity. It should be tempered with a sense of genuine remorse and repentance, and not a calculated strategy to avoid punishment. 16. Sub-section (1) of Section 12 of the Act and the Explanation attached thereto enables the court to remit the punishment awarded for committing the contempt of court on an apology being made to the satisfaction of t....
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....accept the same. The court is competent to reject the apology and impose the punishment recording reasons for the same. The use of insulting language (sic and later on tendering an apology) does not absolve the contemnor on any count whatsoever. If the words are calculated and clearly intended to cause any insult, an apology, if tendered and lack penitence, regret or contrition, does not deserve to be accepted." (emphasis added) 47. In T.M.A. Pai Foundation and Others v. State of Karnataka and Others [(2006) 5 SCC 1], on noticing that the orders passed by this Court were assigned a distorted interpretation by judicial officers, who subsequently tendered an unqualified apology for their conduct, the said apologies were firmly rejected with the following observations : "10. All the five officers, viz., Shri Arvind Choudhari, Capt. Shaikh, Smt Joyce Sankaran, Shri P.S. Mane and Shri B.G. More, have no doubt tendered unqualified apology to this Court but in the facts and circumstances stated above, it would be a travesty of justice to accept the same. They are senior and experienced officers and must be presumed to know that under the constitutional scheme obtaining in t....
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....onduct of the party may throw light upon one important aspect namely whether it was just the inability of the party to honour the commitment or it was part of a larger design to hoodwink the court." (emphasis added) 50. A party appearing before the Court can give an undertaking by filing an application or an affidavit clearly setting out the undertaking given to the Court or by giving a clear and express oral undertaking incorporated by Court in its order. An undertaking may also be given by an Advocate on behalf of a client and if duly and properly given, it has the same effect as one given by the client. An undertaking given to the Court has the same force as an order of the Court and breach thereof would amount to contempt in the same manner as a breach of an injunction. Whether a statement made by a party or its counsel could amount to an undertaking, would depend on the words used in the statement made and the facts and circumstances of a case. When an undertaking is given before the Court for any purpose, be it for payment of money or for vacating a property or for doing an act or for refraining from doing a particular act and compliances are not made, contempt proceedi....
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....acticing Doctors to the effect that they were spreading false propaganda that "there is no cure for deceases like B.P., thyroid, sugar, asthma, arthritis, kidney and liver failure". 53. Furthermore, the proposed contemnors being well aware of the statement recorded on their behalf on 21st November, 2023 to the effect that Patanjali shall not violate any laws, especially laws relating to advertising or branding of products manufactured and marketed by it, a positive assertion was made by them in the Press Conference that they have medicines that could cure blood pressure, thyroid, type-I diabetes and asthma. This statement was in violation of the provisions of the DMR Act and Rules. Describing the products manufactured by Patanjali as a "permanent solution" in respect of ailments listed in the Schedule appended to the DMR Act and Rules which prohibit advertisement of drugs for treatment of particular diseases and disorders including those that were referred to by the proposed contemnors in the Press Conference, again amounted to violating the undertaking given to the Court. 54. Within a week of the order passed by this Court, the proposed contemnors published advertisements in....
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.... and making casual public statements regarding the efficacy of particular medicines manufactured by them and against any system of medicine. They also undertook not to make any such public statements in breach of the undertaking given to this Court. 57. On 16th April 2024, Acharya Balkrishna and Baba Ramdev, who were directed to remain present in Court in terms of earlier orders, stepped forward and orally tendered their unqualified apology to this Court for having called a Press Conference on 22nd November, 2023 and for having continued to issue misleading advertisements and making derogatory statements in respect of other systems of treatment. They assured this Court that they would be more careful in future and not violate any orders of the Court or the undertaking given to this Court or violate any provisions of law. 58. Learned Senior Advocate appearing for the proposed contemnors had also stated that to redeem themselves and demonstrate their bona fides, they proposed to take some steps on their own. The said steps included tendering a public apology in the press for which Acharya Balkrishna filed an affidavit on 24th April, 2024, stating inter alia that an initiative h....