law and justice

Truth as valid defence for contempt of Courts

Indian courts have been taking shelter under the contempt of courts laws, sometimes to ward off criticism and protect their ivory tower position and sometimes to genuinely guard them from unwarranted ridicule. For long this has been the subject of intense debate in the public, media and parliament, necessitating amendment of laws. There is no doubt that judges need honour as this builds up a robust judicial system. But there is also no doubt in the public perception that judiciary in a democratic polity need not to be unduly sensitive to criticism and threaten those who voice it with imprisonment. In this direction, there is some  amendment of contempt of court law, senior  lawyer and commentator Joginder Singh Toor discusses this.

In a democracy no institution should be above scrutiny, least of the powerful judiciary. It is the upholder of constitutional rights and as such it should remain an institution of great faith and for that it must offer itself for examination. The laws of contempt kept media and other institutions from exercising that right over courts. Ironically, courts while upholding free speech and media’s right to freedom, nearly kept themselves out of bounds from media inquiry. Judiciary in India enjoys extraordinary powers and in the process lot of corruption and misdeeds has entered its portals, calling for investigation and comment. Law of contempt was one stumbling block.

Truth at last is a valid defence in a contempt of court case India. The land mark Contempt of Courts (Amendment) Bill, 2004 has been passed by the Lok Sabha on February 21,2006 and may become law after the current budget session of the parliament. Law Minister H.R.Bhardwaj hopes that it shall introduce fairness in procedure and meet the requirement of Article 21, the right to life and liberty.

How far the right to life and liberty of the people of India was jeopardized, not by the Contempt of Courts Act itself but by the interpretation of "Criminal Contempt" has been debated for long. Criminal Contempt is defined  "the publication (whether by words spoken or written, or by signs, or by visible representations or otherwise) of any matter or the doing of any other act whatsoever which – (i) scandalizes or tends to scandalize, or lowers the authority of, any court; or (ii) prejudices or interferes or tends to interfere with the due course of any judicial proceedings; or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner."

The courts proceeded to interpret the word scandalizing the court, any objectionable accusation or publication about a court, not allowing the maker of the statement or the author of publication that he honestly believed in the truth of the statement. One of the High Courts in India has gone to the extent of holding "that any attempt to justify a contempt as based on correct facts would itself amount to gross contempt."

A Full Bench of another High Court has gone further in holding "no plea of justification or truth against a charge of contempt of court can be allowed to be established by evidence both as regards the superior and sub-ordinate courts within India.  All evidence supposedly led on the plea of justification must be scrupulously excluded from consideration. The plea of justification and the leading of the evidence thereon virtually constitutes a fresh action of attempt deliberately pursued on behalf of the contemner." In K.L.Gauba's case, a Full Bench of Lahore High Court disallowed the contemner to examine any of 25 witnesses with the object of proving that the allegations made by him in his book were true. The judges observed "Where a person has been scandalised the court or the Judges by broadcasting a publication imputing injustice, dishonesty, corruption, or improper motives to them in their judicial capacity it is open to him to show that the allegations are true. I have no doubt that this course is not open to the respondent and that any attempt to justify a libel on a judge by attempting to show that the libel was justified would itself be a fresh contempt. A contemner who has been called upon to show-cause how he should not be punished for an attack on the court or its judges does not occupy the position of a defendant in a libel action where he may plead or prove justification or the position of an accused person in a prosecution for defamation."

There had been constant and persistent demand all these years before and after independence that truthfulness of a statement be permitted as a valid defence. The National Commission to review the working of the Constitution headed by formal Chief Justice of India, Justice M.N.Venkatachaliah had recommended that it should be open to the court to permit a defence of justification of truth. Justice V.N.Khare, another former Chief Justice of India was also of the opinion that if judges' misconduct is proved then truth should not only be allowed as defence but should also be taken up for initiating action against the errant judge."

Section 13-B has been added to the Contempt of Courts Act, 1971 providing that "the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide."

The amendment still carries certain ifs and buts.  It has been left open to the court to permit or not to permit the truthfulness of the statement as valid defence if it is not in the public interest or that the request for such defence is not bonafide.

The conditions imposed are analogous to some of such conditions existing in Section 14 where a contempt is committed in the presence of a High Court or a Supreme Court Judge and upon notice the contemner's demand that the cause be heard and decided by another judge of the same court, is left open to the judge to transfer or not, if it is not practicable to do so or it is not in the interest of proper administration of justice.

The courts in India have not only defined vilification of a judge on charges of corruption or personal misconduct as contempt of court rather have gone to the extent of holding persons like E.M.S.Namboodiripad, the first Communist Chief Minister of Kerala when he stated that judiciary is an instrument of oppression and that judges are guided and dominated by class hatred, class interest and class prejudices and where the evidence is balanced between a well dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively  favours the former.

A three judges Bench of the Kerala High Court after hearing the plea of Namboodiripad that it was his political ideology and not any vilification of a particular judge or that he was free as political person to express his ideology in public and was protected under Article 19(1) of the Constitution granting freedom of speech and he did not mean contempt of judiciary, Justice Mathew did not find a case of contempt made out, but the other two judges held him guilty of contempt and imposed a fine of Rs one thousand and one month simple imprisonment. The Supreme Court up held the sentence. His justification of the ideology he professed was not considered as valid defence.

A prominent jurist Dicey had earlier said that laws are   drafted in general terms but are later on interpreted by judges coming from various spheres of life, different leanings, different religious faiths and different backgrounds thereby rendering interpretation of the terms of the law not uniform.

The amplitude of the present amendment will be known when it is tested on various judicial touchstones.  Clearly, this amendment alone cannot be the last effort. Truth here is a valid defence only if it is in public interest. What constitutes public interest is again left to the courts. So the complainant, prosecutor and judge still remain the same.

PS. Former professor of English at the Panjab University Dr D C Saxena feels he has been vindicated by this provision of truth a defence against contempt charges. Saxena's case dates back to October 1994, when he filed a writ petition against the then prime minister P V Narasimha Rao stating that Rs 8 crore should be recovered from Rao as the cost of using Indian Air Force (LAX) aircraft for cam­paigning during elections. Interestingly the Court asked him how was he con­cerned and quoted Article 51 of the Constitution that lays down that it should be the duty of every citi­zen to preserve and protect public property.

The Bench headed by Jus­tice A M Ahmadi dismissed the case. But when Saxena, during the petition, pointed out that Ahmadi's son and daughter were both practicing in the Delhi High Court and Supreme Court from his offi­cial residence, contempt pro­ceedings were initiated against him.

"Was that a lie? No. Yet, I was convicted for contempt of court for the truth. A Divi­sion Bench comprising Jus­tice K Ramaswamy, N P Singh and S P Bharucha con­victed me with three months imprisonment," recalls Saxena. He used these three months in Delhi’s Tihar Jail teaching inmates and helped some graduate.  Saxena feels  "This will act as a deter­rent to willful defiance of law by the serving judges. It will also prevent people, including the members of judiciary, from misusing their judicial powers, in the name of discre­tion."