The 2006 amendment to the Contempt of Courts Act, 1971, clearly states that truth is a valid defence against contempt of court proceedings in India. This Act, number 6 of 2006 of the Indian Parliament, amends Section 13 of the Contempt of Courts Act, 1971, incorporating Sub-section (b) to Section 13.
Sub-section 13 (b) reads:
“The court may permit, in any proceeding 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 bona fide.”
The enactment, in its objects and reasons for the amendment states that “the amendment will introduce fairness in procedure and meet the requirements of Article 21 of the Indian Constitution.”
With this important amendment, the Indian Parliament has effectively made it impossible for the Indian Judiciary to replace rationality with emotion or justice with bias when it is called upon to decide upon acts that the court alleges are contemptuous to its writ.
While this notable amendment has been reported widely in the Indian press it appears to be lesser known in the wider South Asian region. Consider the 2010 judgement of the Supreme Court of Bangladesh in Advocate, Md. Riaz Uddin Khan v. Mahmudur Rahman and others where the learned judges have argued, “the disclosure of true facts cannot be taken as a defence against the act of contempt”. The main judgement states:
“There are numerous decisions of the Apex Courts of India, Pakistan and Bangladesh that truthfulness or factual correctness is not recognized as defence in the law of contempt. There is hardly any decision of English or of this sub-continent on the jurisprudence of contempt that such defence to be recognized [sic].”
The same passage has also been cited in a recent (2014) International Crimes Tribunal-2 judgment, Advocate Abul Kalam Azad v. David Bergman, wherein Mr. Bergman was found guilty of contempt.
In fact, the amendment in the Indian law now substantially reduces the possibility of the Indian Apex Court making the mistakes it made in the Mid-Day case and in the case against Ms. Arundhati Roy (read Mr. A.G. Noorani’s critique here). The law, as it stands in India, is not perfect. However, the amendment now restrains the court from acting capriciously. In retrospect, if the above two cases had been adjudicated today the decisions would likely have been different.
Justice John Marshall of the US Supreme Court, when asked about the sanctity of the contempt of court jurisdiction said: “… it is not the power of the courts to try and punish a person that gains the respect of the people. It is the trust that the citizens have in their judiciary.”
The judiciary is the ultimate guardian of individual freedoms, including the freedom of opinion and expression. Unfortunately, in South Asia the judiciary is better known for its impulsive acts of invoking contempt actions. The merits in most of these decisions are questionable and many are abject injustice. Owing to different reasons, including a lack of transparency and accountability in the judiciary, judges often face public criticism for acts of commission and omission.
In times of advanced communications technology, where opportunities and avenues are abundant for socially conscious persons to opine about institutions and acts that they think must be commented upon, the possibility of a person making a comment or committing an act that could be viewed as contemptuous to the writ of a court is high. For this very reason, it is important for the judiciary to react while acknowledging that all acts and comments are not, in fact, made to wilfully obstruct the process of justice or to demean the mandate of the institution. There are examples where the Indian Judiciary has shown well-grounded maturity even on occasions where leading political figures in the country, during nationally aired interviews and public speeches, have referred to the country’s judges as insensitive and painted the institution as one divorced from ground realities.
The contempt jurisdiction is the prerogative of the judiciary, which it must use with utmost care and caution. This is so because, as opposed to any other instance where there is a defined complainant and a respondent before a judge, in a case of contempt the judiciary becomes the complainant, the prosecutor, and the adjudicator all rolled into one.
In some advanced jurisdictions, such as Germany, France, Austria, Belgium, and Italy there is no power vested with the judiciary to initiate contempt actions for the scandalising of the court. In these jurisdictions, a judge has to file a criminal complaint or institute an action for libel. This has proved that the civil society, particularly the media, can closely monitor the functioning of the judiciary, and, if required, that of individual judges. Such close monitoring and public criticism opens up the possibility for the judiciary to be extremely careful about its own actions.
In jurisdictions where the archaic criminal contempt is an option, there are numerous instances where judges have overstepped their mandate. On these occasions judges have found themselves in more scandalous positions—due to their own actions after having initiated contempt proceedings—than the defendants of the alleged acts of contempt that they wanted to prosecute.
The absence of contempt jurisdiction is also an indicator of the maturity of the justice institutions in the country and the respect with which people treat their justice process. In advanced jurisdictions where the perception of justice is felt and experienced in daily life there is no requirement to instil respect by fear. This is perhaps what Justice Marshall said by referring to the term “trust” of the citizenry in the justice process. Indeed, the trust of the people is a matter that has to be achieved through honourable and prompt actions, not imposed top-down through an authoritarian process.
The Indian law provides a wider scope to interpret what amounts to contempt; it also provides for a detailed procedure that must be followed should the court invoke a contempt action. The process involves offering opportunity to the person tried for contempt to defend his or her action. It offers an impartial adjudication, a proportionate punishment, and above all the possibility to appeal.
In the Arun Shourie case decided by the Supreme Court of India, post the 2006 amendment of the Contempt of Court Act, the Court held that truth is a defence against contempt actions. This was a watershed legal decision in South Asia. Today, if the Mid-Day or the Arundhati Roy case were to be decided again the amendment would likely prevent the court from arriving at the same decision.
The restriction on contempt of court jurisdiction will have a direct corrective effect upon misdemeanours of the Judiciary. Chief Justice E. S. Venkataramiah, a liberal judge known for his progressive views on press freedom, in an interview with veteran journalist Mr Kuldip Nayar on the eve of his retirement said “… the judiciary in India has deteriorated in its standards because judges appointed are willing to be influenced by lavish parties and whiskey bottles. In every High Court there are at least 4-5 judges who are practically out every evening, wining and dining, either at a lawyers house or a foreign embassy….” A leading advocate in India brought this statement by Justice Venkataramaiah, to the Nagpur Bench of the Bombay High Court for instituting contempt proceedings against Justice Venkataramiah arguing that his statement had scandalised the entire Judiciary. The High Court however dismissed the petition observing that the judge made the statement with an intention to improve the Judiciary.
The possibility to openly criticise judges for their acts, which are unacceptable in law, will prevent judges like Veeraswamy, the former Chief Justice of the Madras High Court from continuing in office. While deciding Veeraswamy’s case, the Supreme Court observed: “… a single dishonest judge, not only dishonours himself and disgraces his office but also jeopardises the integrity of the entire judicial system …”
The important amendment to the Contempt of Court Act, 1971, has brought the contest to the point of truth, its suppression, and the choice of a free citizen to expose the truth and speak about it. The amended Indian law, despite its flaws, has set a standard for judges to exercise their jurisdiction for contempt proceedings. It is a process that could be emulated by other jurisdictions in Asia where often a proper law on the subject either does not exist, or is virtually the same archaic one introduced by the British colonialists.
