Indirect Tax Practitioners Association's plea against magazine Editor dismissed

The Supreme Court on Friday held that truth based on facts should be allowed as a valid defence, if courts are called upon to decide contempt proceedings relating to a speech or an article or an editorial in a newspaper or magazine unless such defence is used as a camouflage to escape the consequences of a deliberate attempt to scandalise the court.

A Bench of Justices G.S. Singhvi and A.K. Ganguly said: “Section 13 of the Contempt of Courts Act represents an important legislative recognition of one of the fundamentals of our value system: truth. The amended Section enables the court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest, and the request for invoking the defence is bona fide.”

Writing the judgment, Justice Singhvi said: “It will be apposite to notice the growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern at wrongdoing occurring in an organisation or a body of people. Usually this person would be from the same organisation. The revealed misconduct may be classified in many ways: for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption.”

The Bench said: “We deem it necessary to remind ourselves that the freedom of speech and expression has always been considered the most cherished right of every human being.”

Quoting a U.S. Supreme Court judgment, the Bench said: “It is a prized privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.”

The Bench said: “In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and the freedom to speak one's mind have always been respected. After Independence, the courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or the functioning of institutions or authorities entrusted with the task of deciding the rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements.”

The Bench said such criticism could not be castigated as an attempt to scandalise or lower the authority of the court or other judicial institutions or as an attempt to interfere with the administration of justice, except when such criticism was ill motivated or construed as a deliberate attempt to run down the institution or an individual or when the judge was targeted.

The Bench said: “Ordinarily the court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is a deliberate attempt to denigrate the institution, the court will use this power.”

In this case, Excise Law Times wrote an editorial in its June 1, 2009 issue, highlighting what it perceived as irregularities in the transfer and postings of some members of the Customs, Excise and Gold (Control) Appellate Tribunal.

The Indirect Tax Practitioners Association filed a contempt petition against the Editor of the magazine, R.K. Jain, contending that the editorial amounted to contempt of court, and the respondent had violated an earlier undertaking given to the Supreme Court.

Dismissing the petition, the Bench said: “What was incorporated in the editorial was nothing except the facts relating to manipulative transfer and posting of some members of the CESTAT and the substance of the orders passed by the particular Bench of CESTAT, which were set aside by the High Courts of Karnataka and Kerala.”

Holding that the editorial based on facts would not amount to contempt, the Bench imposed Rs. 2 lakh in costs on the petitioner, of which Rs.1, 00,000 should be deposited with the Supreme Court Legal Services Committee and Rs.1,00,000 should be paid to Mr. Jain.

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