By Karan Gupta
Shall the Contempt of Courts Act, 1971 be amended to incorporate the rule of truth as a defense to a charge of contempt?
Contempt of Courts Act, 1971 in Section 13 or Law of Contempt provides for holding a person liable for offending the authority of the courts. This could be for scandalizing the process of courts or going against the dictates of the court in any manner or doing anything which violates the authority of the courts in any manner.
Testifying on oath by a person in a court before a judge becomes redundant if he/she is not allowed to resort to it for the purposes of defending oneself. Thus, truth as a defense to a charge of contempt must be allowed whereby the application of it is not to be left at the discretion of judges but is to be found on sound legislation.
The test of public interest coupled with strict penalties in the form of fines and imprisonment would provide an ideal platform for amending Section 13 of Contempt of Courts Act, 1971 for inserting truth as a defense. Interpretation of sub-judice rule must be harmoniously construed by balancing free speech expression on the one hand and genuineness of proceedings on the other.
A nation that swears by Satyameva Jayate (May truth be Victorious) as its sublime national motto can ill afford to ignore truth as a defense to a charge of contempt. The National Commission to Review the Working of the Constitution (NCRWC) has even recommended the insertion of a provision in clause (2) of Article 19 of the Constitution of India to permit a defense of justification by truth on satisfaction as to the bona fides of the plea in matters of contempt.
Independence of judicial office should not yield bribery, sex abuses, pernicious influences, etc. Principles of contempt jurisprudence need a strict revision in order to achieve fairness and justness in judicial procedures and attitudes. Judges would be prohibited from fabricating their own theories for the purposes of investigation. Making a charge of contempt questionable would lead to greater accountability on the part of both, the functionaries as well as the judges.
Truth as a defense to a charge of contempt has been accepted by the English and Australian courts as well. Truth must be a complete defense for the purposes of indicting a judge accused of various charges in order to instill faith amongst parties facing contempt charges.
The Contempt of Courts (Amendment) Bill, 2003 seeks to achieve the aforesaid purpose. Test of public interest acts as a sufficient guideline for allowing truth as a defense. Transparency, free speech, an open society, demand of rule of law, needs to be satisfied. No man is above law and it follows naturally that no institution, be it the Legislature, Executive or the Judiciary, is above law.
Beechere has said: ‘Laws and institution like locks, must occasionally, be cleaned, wound up, and set to true time.’
Truth as a defense to a charge of contempt is based upon the relevance of truth as a high moral principle for any judicial proceeding. This does not imply punishment of judiciary for no fault of theirs. Judiciary must be protected from baseless accusations emanating from various sources. At the same time, it should not be allowed to go against the basic tenets of a constitutional democracy.
No body can be a judge for his own cause
Association on strike to restrain any member to appear before a court without any hindrance by taking disciplinary action against its members. Ms. Kamini Jaiswal, a Supreme Court advocate was suspended for filing a civil contempt petition against the Supreme Court Bar Association for violating the orders given by the Supreme Court on a public interest petition in the year 1994. The case is pending and Ms. Jaiswal is still suspended. This shows the inability of courts to deal with charges of contempt and therefore there is no reason why truth as a defense cannot be allowed to a charge of contempt.
Discretionary powers on the judges for deciding charges of contempt
Anything being said against the judges or the judiciary in a courtroom should be taken out of the ambit of that concerned court’s judge, as not doing so would amount to negation of justice and encouragement of biasness in the opinion of the judge.
Jurisprudential principles in India must admit truth as a defense based on the twin tests of due care and caution and public interest. The Indian courts have in a number of cases considered the aspect of truth as a defense. For example, Sundram case (issue of age determination of then Chief Justice of India, Mr. A.S. Anand), Wah India case (where the respondents were proved guilty of contempt as being not able to prove incorrect rating of Delhi High Court Judges) and the landmark case of Perspective Publications v State of Maharashtra where truth as a defense was suggested to be not sufficient to a charge of contempt.
The contempt power squarely impinges on Articles 14, 19 and 21 of the Constitution and there must be a high priority for free speech enshrined in the Indian Constitution on the lines of American Constitution.
The notion of checks and balances operate amongst the organs of the state in a constitutional democracy whereby each one of them is accountable to the public in one way or the other. But how are we going to have an accountable judiciary if its powers to punish for contempt are used arbitrarily and corruptibly to evade genuine criticism?
The thought of frivolous or baseless allegations cannot be used as a cloak for evading the scrutinizing process to which the courts may be subjected once the amendment is made. The National Democratic Alliance (NDA) government had a golden opportunity to amend the Act in question but they chose to go the other way on the advice of the then Union Law Minister Ram Jethmalani.
No doubt the power to punish for contempt is a proof of reposition of faith in the Judiciary. But the courts have not been up to the task where it has come to punishing for civil contempt.
Allowing truth as a defense by way of legislative amendment would only enhance the respect and authority of courts as every decision rendered would have a sound legal base. Confidence in the courts must not be tarnished and the courts should exercise powers to punish contemnors who bring it in disrepute and disrespect. But it shouldn’t be taken too far to result in an unaccountable and arbitrary judiciary.
Power to punish for contempt of court is to be used as a shield only and not as a sword. An amendment to the Contempt of Courts Act, 1971, will not lead to erosion of court’s powers to punish for contempt because the same is provided for by Articles 129 and 215 for the Supreme Court and the High Courts respectively.
An amendment would prevent the Act from becoming a potent reason of furtherance of corruption in the society. The facade of judicial authority and dignity needs to be exposed as all apprehensions about the relevant amendment are a result of certain vested interests. No model code of conduct for the judges can act as a substitute for public scrutiny and criticism.
Judiciary itself negates the relevance of the data taken in the court before the judge by disallowing truth as a defence to a contempt charge. The amendment would reduce the burden on the courts as the amount of time involved in a proceeding would be reduced considerably. Law making is not for the judges, but by the judges for the people.
Public acquaintance of truth about Judiciary is highly desirable in a constitutional democracy but it has a huge price tag in the form of erosion of faith and public esteem in the institution of Judiciary. Concealing the truth about Judiciary is unwise but revealing it for unethical, vexatious and corrupt purposes is equally dangerous.
The acceptability of the amendment requires a change in the attitude of judges in the form of acceptance of open criticism of their activities. The amendment seeks to respect the difference between forms of justification and their exercise. An unaccountable judiciary gives rise to a threatened individual existence. Basis of contempt may differ, but basis of justification i.e. truth, will remain the same.
Unless and until there are strict internal safeguards for assessing the conduct of judges in place, we need truth as a defence to a charge of contempt. If there is no confidential process of top level inquiry or an appropriate Judicial Deviancy Commission in place, truth as a defence must be allowed. The same shall be the rule for tribunals and legislatures.
Prevention of contempt of courts shall not lead to contempt of justice.
Anything being said against the judges or the Judiciary in a courtroom should be taken out of the ambit of that concerned court’s judge.
Truth as a defense to a charge of contempt has been accepted by the English and Australian courts as well.