“I do not agree with a word you say, but I will defend to the death your right to say it.” — Voltaire.
Two recent judgments of the Supreme Court in cases relating to contempt of court should have brought cheer to the champions of the fundamental rights of free speech and civil liberties that the Constitution had given the people — as well as of the accountability of the judiciary. The two verdicts have made a significant contribution to the jurisprudence on contempt.
Delivering judgment in the Indirect Tax Practitioners Association, Bangalore vs. R.K. Jain on August 13, the two-judge bench, comprising G.S. Singhvi and Asok Kumar Ganguly, held that “truth based on facts” should be allowed as a valid defence if courts are asked to decide contempt proceedings relating to a speech or an editorial or article of a newspaper or magazine. The qualification is that such defence should not be a cover-up to escape from the consequences of a deliberate effort to scandalise the court. In this case, the court held that the editorial R.K. Jain wrote in his magazine, Excise Law Times, was based on facts and so would not amount to contempt of court. It ordered Rs. 2 lakh in costs on the petitioner association, of which Rs. 1 lakh would go to Jain and the rest would be deposited with the Supreme Court Legal Services Committee.
‘Justification by truth'
The bench 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.”
The other judgment related to a charge of contempt of court against Union Human Resource Development Minister Kapil Sibal. The matter arose out of his comments as a senior Supreme Court lawyer on judges published in a magazine brought out by the advocates of the Punjab and Haryana High Court in 1995. While dismissing the charge, the Supreme Court ruled that a fair and reasonable criticism of a judgment, which is a public document or a public act of a judge concerned with the administration of justice, would not constitute a contempt of court. In the judges' opinion, such fair criticism should be encouraged.
The bench comprising Justices J.M. Panchal and A.K. Patnaik said that Mr. Sibal, had in his souvenir article only discussed the malaise that had afflicted the judicial system as well as the legal community. It found that as a senior lawyer he had only made a fair and balanced assessment. Justice Panchal, who wrote the judgment, said that a fair reading of Mr. Sibal's message to the souvenir showed that it did not scandalise or tend to scandalise the authority of any court.
Such a liberal and rights-based approach to vexatious questions repeatedly raised by contempt of court cases should be seen against the backdrop of the decades-long campaign for judicial reforms that aim at bringing social, economic and political justice closer to the socially and economically oppressed sections of people, who constitute a substantial percentage of India's 1.5 billion population. Nonagenarian V.R. Krishna Iyer, a legal luminary and great judge who leads the campaign against judicial intolerance of criticism, observed in a recent article (“Against abuse of the contempt power,” The Hindu, July 24, 2010): “When the Executive misuses its powers, the court can strike down its actions. When the Legislature commits excesses beyond the Constitution or otherwise defaults, the court can declare it void. When judges themselves are guilty of flaws, shortcomings or violations, public criticism is the only way the judges can be corrected.” He added tellingly: “The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance.”
The Supreme Court bench that dealt with the R.K. Jain case quoted extensively from jurists and legal experts across the globe to reiterate the values attached to the many rights handed down by the Constitution and cherished by the people. It made it clear that “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.”
The most precious freedom
Justice Singhvi, who wrote the judgment, elaborated this position: “In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and 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 functioning of institutions or authorities entrusted with the task of deciding 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 noted that 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 the criticism was ill motivated or was construed as a deliberate attempt to run down the institution. Ordinarily, the bench said, the court would not use the power to punish for contempt so as to curb 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 a total lack of objectivity or a deliberate attempt to denigrate the institution would the Court use this power, the bench said.
Interestingly, the judges found both Mr. Sibal and Mr. Jain not only not guilty of contempt of court but as having done real public service, each in his own way, as an advocate and as a journalist.
Keywords: contempt of court