Truth as defence

AT a seminar held in New Delhi in the third week of September on the subject of contempt of court, organised by the Committee on Judicial Accountability (CJA) and Janhastakshep, some legal experts, mediapersons and activists agreed on two things. One, it has become imperative for people to demand that Parliament amend the Contempt of Courts Act, 1971 to make it clear that any criticism of the court, howsoever severe, and any imputation against a Judge or the judiciary, will not constitute contempt, unless it is shown that the imputation is both baseless and mala fide. Secondly, a case involving a charge of contempt of court should be tried by a Bench comprising five Judges, and not by the very same Judge or Judges against whom the criticism or imputation in question is made.

The seminar was addressed by eminent persons from different walks of life, including former Speaker of the Lok Sabha Rabi Ray; CJA member and senior advocate Shanti Bhushan; senior advocate and Member of Parliament Fali S. Nariman; Frontline Editor N. Ram; Jansatta editorial adviser Prabhash Joshi; journalist-cum-crusader Vineet Narain, and writer-cum-activist Arundhati Roy.

The timing of the seminar was significant. A spate of judicial decisions from the High Courts and the Supreme Court in recent weeks has raised serious questions about the relevance of the Act to "define and limit" (as spelt out in the Act's introduction) the powers of courts to punish for contempt. Observers believe that the Act, rather than define and limit the courts' powers to punish for contempt, has let itself be misused to stifle genuine criticism against the judiciary and this has grave implications for ensuring accountability of one of the key pillars of India's democracy.

There are no serious objections to the exercise of powers by the court under the Act to punish for civil contempt (defined in the Act as 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). This power is essential to preserve the authority of the court and the rule of law. It is true that in many cases the courts have not been able to punish governments for civil contempt. It is equally true that in some cases, the courts have ensured compliance with their orders by merely issuing notices for taking action against civil contempt.

In case of non-compliance, the court can normally invoke its powers to punish for civil contempt, without the risk of facing allegations of bias or arbitrariness. However, the courts have generally failed to do so. For instance, the Supreme court, in an interim order on a public interest petition in December 1994, directed that lawyers' associations and Bar Councils, when they issue a call for strikes, should let any members to be free to appear before a court without fear or hindrance.

However, a civil contempt petition filed by Supreme Court advocate Kamini Jaiswal alleged that this order was violated by the Delhi High Court Bar Association in May 1999 and February 2000, when it threatened disciplinary action against members who ignored the strike call. In March 2000 Jaiswal filed another civil contempt petition against the Supreme Court Bar Association for suspending her from its membership for violating the strike called on February 24, 2000. These petitions came up for preliminary hearing before Chief Justice A.S. Anand's court in March 2000, and the Supreme Court Bar Association office-bearers filed its reply to the notices issued to it. The case is pending, and Jaiswal's membership of the association has not yet been restored.

Contrast this with the Supreme Court issuing notices to Arundhati Roy, Medha Patkar and Prashant Bhushan for criminal contempt following a dharna organised by the Narmada Bachao Andolan outside the Supreme Court on December 13, 2000. The bench comprising Justices Ruma Pal and G.B. Pattanaik, which heard the case, concluded that the petition did not contain allegations that the participants in the dharna had picketed the gates of the court and prevented lawyers or litigants from entering or leaving the court premises. Such allegations, if made and substantiated, could have constituted criminal contempt under sub-sections 2 (c)(ii) and (iii) of the Act. The bench also agreed that procedurally, the petition was deeply flawed and should not have come up before the court for this reason.

But all this did not stop the Supreme Court from issuing a fresh notice of criminal contempt on Arundhati Roy for three paragraphs in her affidavit (see report in Frontline, September 15, 2001).

Against such a background, the resolution passed at the seminar stated: "The power assumed by the judiciary (and later conferred on them by the Act) of deciding whether a particular criticism of themselves amounts to 'scandalising the court or lowering the authority of the court' is the very negation of the notion of justice in which no person can sit in judgement over his own cause. This power has been misused by the courts to go so far as to hold that no motives can be ascribed to judges or courts and that even the truth of an imputation cannot be pleaded in defence in a charge of contempt."

Is truth a defence to a charge of contempt of court? A.G. Noorani argues in his review of Contempt of Court by C.J. Miller (OUP) (Economic and Political Weekly, May 19, 2001) that to bar truth being cited as a defence is to render the restriction on free speech (under Article 19 (2) of the Constitution) as being not reasonable. Noorani recalls that the Australian High Court has gone so far as to rule in 1992 that, "so long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice he or she is immune."

Although courts in England have allowed truth coupled with public interest as a defence to a charge of contempt of court, Indian jurisprudence is yet to admit that truth could be a defence to a charge of contempt. The issue whether truth can be pleaded as defence in contempt proceedings was first referred for consideration by a five-Judge Constitution Bench of the Supreme Court in the Dr. Subramanian Swamy vs Ramakrishna Hegde case filed in 1990. This case is still pending. The issue again came up in the Ramaji Rao vs State of Andhra pradesh, and was referred to the same Bench in 1999. For an imputation to be bona fide, it must pass the twin tests of due care and caution coupled with public interest, Prashant Bhushan says.

However, the way the courts have decided some recent contempt cases suggests that they are inclined to examine the truth or its absence behind the allegations or imputations, before concluding the proceedings, thus attesting the argument that truth can be a defence. In the S.K. Sundaram case, for instance, the Supreme Court sought to show that his allegation that Chief Justice A.S. Anand was born in 1934 and not in 1936 was untrue in view of the President's determination of the issue in consultation with the then Chief Justice of India in 1991.

The Ruma Pal-G.B.Pattanaik judgment too dropped the contempt proceedings against Medha Patkar, Prashant Bhushan and Arundhati Roy, after concluding that the allegations against them were untrue. In the wah-india case, the Delhi High Court found the respondents guilty of contempt of court, as they could not prove that their rating of Delhi High court Judges was true. In the landmark Perspective Publications vs State of Maharashtra case (1971, AIR, para 18, p.230), the Supreme Court only suggested that even if truth was pleaded as defence, the allegations made by the contemner against the Judge were untrue.

The Bench consisting of Justices K.T. Thomas and R.P. Sethi ruled in the S.K. Sundaram case: "Before a person proposes to make an imputation on another, the author must first make an enquiry into the factum of the imputation... The enquiry expected of him is of such a depth as a reasonable and prudent man would make with the genuine intention in knowing the real truth of the imputation. If he does not do so, he cannot claim that what he did was bona fide."

Senior advocate and legal scholar Rajeev Dhavan feels that there is a need to re-examine the Act in its entirety. If there is an imputation of motives made against a Judge, it can be treated as a defamation case, and tried in the ordinary course, dispensing with the summary power conferred by the Act, he says.

Kapil Sibal, Supreme Court Bar Association president, agrees that the Act is anachronistic and impedes judicial accountability. But he warns that the alternative suggested by Dhavan is no remedy: "Judges cannot be litigants. For every decision of the court, there is a great tendency to attribute motives. Litigation is not a pleasant business."

Shanti Bhushan's answer to this is: "A judge need not prosecute for defamation himself. He can ask the Public Prosecutor to do so on his behalf."