Truth as defence Frontline Volume 24 - Issue 20 :: Oct. 06-19, 2007 By V. VENKATESAN in New Delhi The amendment to the Contempt of Courts Act providing for truth as a defence is on test in the case against “Mid-Day” of Delhi. IN 2006, Parliament amended the Contempt of Courts Act (CCA) to introduce Section 13(b), which states: “The courts 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 bona fide.” The object of this amendment was to introduce fairness in procedure and meet the requirements of Article 21 of the Constitution, which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. The amendment failed to achieve its object when the Delhi High Court Bench comprising Justices R.S. Sodhi and B.N. Chaturvedi found three journalists and the publisher of Mid-Day, Delhi’s afternoon daily, guilty of contempt of court, and sentenced them to four months’ imprisonment on September 21. The Bench found journalists M.K. Tayal and Vitusha Oberoi, cartoonist Md. Irfaan Khan, and publisher S.K. Akhtar guilty of contempt. In its view, they, in the garb of “scandalising” a retired Chief Justice of India through their publications, have, in fact, attacked the very institution of judiciary. The Bench arrived at this conclusion through convoluted reasoning and a procedure that is glaringly flawed. Mid-Day published on May 18 a story hinting that the sons of the former Chief Justice of India, Y.K. Sabharwal, benefited by the Judge’s orders directing the sealing of commercial properties in the residential areas of Delhi, and that the sons were operating their businesses from the Judge’s official residence. Irfaan Khan’s cartoon, which was carried in the daily on May 19, depicted Justice Sabharwal in his robes holding a bag bursting with currency. It also depicted a man sitting on the sidewalk saying, “Help! The mall is in your court.” In response to the notices issued to them by the Bench, the accused journalists claimed in their affidavits that whatever was published in Mid-Day about Justice Sabharwal was the truth, which is a permissible defence. They also contended that the stories carried in the daily focussed on the life of the former Chief Justice of India after he had left office and, therefore, could not be termed as denigrating the authority of the Supreme Court. They also argued, through their counsel Shanti Bhushan, that the Chief Justice ought not to have been on the Bench that passed orders concerning the sealing of properties in Delhi where non-conforming activities were going on and further that it was the duty of a journalist to expose corruption in the judiciary at the highest level. Shanti Bhushan also told the Bench that the material on record was ample proof that the sons of the former Chief Justice were beneficiaries of the sealings. Shanti Bhushan clarified to the Bench that he was not challenging the correctness of the order of the Supreme Court but the order of the former Chief Justice, who was the presiding member of the Bench and who, by his impropriety, passed orders sealing premises in which commercial activities were being conducted, in order to benefit his sons’ business. But these arguments failed to convince the High Court Bench. It appeared to the Bench, from the manner in which the entire incident has been projected, that the Supreme Court was portrayed by Mid-Day as having permitted itself to be led into fulfilling an ulterior motive of one of its members. “The nature of the revelations and the context in which they appear, though purporting to single out a former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is that of a Bench. Imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfil the ulterior design. This we find most disturbing,” the Bench said. Observers note that by no stretch of imagination can it be held that the Mid-Day stories on Justice Sabharwal suggested that other members of the Bench had connived at his “impropriety”. The Bench, as is clear from this order, did not find it necessary to consider truth as a defence while holding the journalists guilty of contempt. It may be of interest to point out that the amendment to the CCA providing for truth as a defence is by way of addition to Section 13, which says that contempt is not punishable in certain cases. In other words, the CCA envisages two types of offences of contempt of court: those which are punishable and those which are not. Section 13(a) says that no court shall impose a sentence under this Act for contempt of court unless it is satisfied that contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. During the arguments over the sentencing of the contemners on September 21, the counsel for the journalists again raised the plea of truth as a defence under Section 13(b) of the Act. The Bench, however, brushed aside the plea, asking “truth of what?” It is clear, therefore, that the Bench considered the case as one of punishable contempt. The Bench, however, failed to ensure that the requirements of the Act were met in letter and spirit. The Bench obviously found the journalists guilty of contempt under Section 2c (i) of the Act. Under this section, “criminal contempt” is defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise or lowers or tends to lower the authority of any court. Observers have pointed out that law has implicitly provided for truth as a defence under this section as it is only falsehood that can scandalise or lower the authority of any court. The procedural flaws in the case were substantial. One is about the High Court’s jurisdiction to entertain the case suo motu. It has exercised its jurisdiction under Article 215 of the Constitution. This Article says that every High Court shall be a court of record and shall have all the powers of such a court, including the power to punish for contempt of itself. Section 11 of the CCA says: “A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.” Going by this provision, it is not clear how the High Court Bench considered the matter as falling within its jurisdiction, even though the contempt alleged is of the Supreme Court, which is not subordinate to it. Under Article 129, only the Supreme Court has the power to punish for contempt of itself. On September 28, the Supreme Court Bench comprising Justice Arijit Pasayat and Justice P. Sathasivam admitted the appeals of the journalists concerned and stayed their sentence until the disposal of the case. On the directions of the Supreme Court, the High Court granted them bail on September 21. The Bench appointed senior counsel T.R. Andhyarujina amicus curiae and directed that the appeals be listed for hearing on January 16, 2008. The case has brought to the fore the effectiveness of the amendment incorporated in the CCA. The Bill on this amendment was cleared by a Parliamentary Standing Committee (12th Report of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice) in August 2005. In its report, the Committee hoped that the higher judiciary would give due regard to this statutory provision (guaranteeing truth as defence), maintaining the principles of fairness and reasonableness it was known for. The Committee also believed that such procedure would give the contemner full opportunity to make his defence and ensure that the principle of natural justice was not violated. More important, the Committee had recommended that the defence of truth be inserted as one of the exemptions or defences under Section 8 of CCA rather than under Section 13 because it felt it would give the contemner additional help in that he could defend himself on the grounds of truth. But the government did not accept this recommendation while enacting the Bill. The National Commission to Review the Working of the Constitution (NCRWC) recommended in 2002 an amendment of Article 19(2) of the Constitution to provide for defence of truth in contempt proceedings. The Commission took this view, considering the inherent powers derived by the Supreme Court and High Courts from Articles 129 and 215. The Commission had reasoned that a total embargo on truth as justification would be an unreasonable restriction on the freedom of speech and expression, which is guaranteed by Article 19(1)(a). The government, however, felt that a constitutional amendment for this purpose would be a time-consuming process, and thus opted to amend the Act. The question raised in legal circles is whether the journalists held guilty of contempt would have succeeded in establishing the truth of their allegations against Justice Sabharwal, even if the Delhi High Court had allowed truth as a defence during the proceedings against them. As Prashant Bhushan of the Campaign for Judicial Accountability and Reforms (CJAR) told the Standing Committee: “If anybody does a story and even if he says it is bona fide, he may not be able to prove the truth of what he is saying. He may legitimately believe as true what he is saying. But he may not be able to prove in a court of law unless statutory investigation is made by the police agency and documents are seized.” The pressure mounting on the Chief Justice of India, Justice K.G. Balakrishnan, to constitute an inquiry into Mid-Day’s allegations against Justice Sabharwal – later authenticated by the CJAR’s painstaking documentation available on its website – thus makes sense.