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Truth on Its Way to Half a Victory

This article discusses the proposed amendment of the Contempt of Court Act, 1971 which would seek to introduce "truth as a defence". Some suggestions are also offered.

Truth on Its Way to Half a Victory

This article discusses the proposed amendment of the Contempt of Court Act, 1971 which would seek to introduce “truth as a defence”. Some suggestions are also offered.


n the new year of 2006 truth seems to be on its way to victory – at least half a victory. Truth was not a defence in a contempt case. But now an amendment in the Contempt of Court Act, 1971 has reportedly been cleared by the cabinet. This would seek to introduce “truth as a defence”. The cabinet having accepted the proposed amendment, it is quite likely that it will sail through in the Parliament without much hitch since it was introduced at the time of National Democratic Alliance (NDA) but had since lapsed.

The basic position about truth as a defence in a contempt case is that for a commoner telling the truth is not a defence in a contempt case against him. Defence of an alleged contemner for the offence of scandalising a court has of late become a relevant issue in the context of liberalising society. Economic liberalisation must be accompanied by liberalisation in the legal field as well. There has been a widespread debate on the need to change the legal and judicial provisions of Section 4(A) of the Contempt of Courts Act 1971 regarding scandalising the court. This was in the context of several senior judges including the chief justice of the Supreme Court having admitted publicly that corruption existed in the judiciary.

British law is the only legal system, which retains the power of judges to punish their critics. Countries like India, which follow the British system also have that legacy. Historically, the concept of scandalising the court goes back to colonial times when the colonised population was not supposed to criticise judges. It is an anachronism now with changing judicial values. In the US it has changed. This principle was removed from American common law, because the US Supreme Court ruled that the concept of moving contempt for scandalising the court was not compatible with freedom of speech.

Truth as Defence

In testing what constitutes reasonableness, can truth be the main defence? The judicial pronouncements as they stand now do not permit truth as a defence in a contempt case (V M Kanade vs Madho Gadkari, editor, Loksatta 1989 Mah LJ 1078). Not only that. Each time you defend yourself saying that you have told the truth, you commit a fresh contempt. It becomes a continuing contempt. It is a well-settled legal proposition and does not need to be supported by many citations. However, the judgment of the Supreme Court in the case of Advocate-General vs Abraham George reported in AIR 1971 SC 221 is authoritative on the issue. It was posited in this case that a contemner’s honest belief as to the truth of his own statement by itself cannot be an answer to the charge of contempt. Also in Perspective vs State of Maharashtra AIR 1971 SC 221 the Supreme Court has held that truth could be a defence in a case of libel but not contempt. The same view has been held in C K Daphtary vs O P Gupta AIR 1971 SC 1132. The unfortunate position is that not only is no evidence allowed to be led to establish the truth, the assumption is also made that the allegations are all false. “In short, this amounts to telling a person, ‘your allegation is false because according to me it is false and there is no more to be said about the matter’” (Soli Sorabji in Advocate 1978, p 23).

There are some judgments, which propound the thesis of fair defence but do not exactly support truth as a defence. One of them is in the case of Bathinda Ramakrishna Reddy vs State of Madras, AIR 1952 SC 149 where the Supreme Court has said that if “the allegations were true obviously it would be to the benefit of public to bring matters into light”. The Sanyal Committee dated February 28, 1963 considered fair criticism of judicial acts and decisions as defence (pp 43-46).

Not permitting truth as a defence in a contempt case goes directly against the following fundamental propositions:

  • (a) Witnesses in the courts are made to take oath that they will speak the truth and nothing but the truth. But the same truth stated in a contempt case is not a defence.
  • (b) Our national motto is “Satyam Eva Jayate”. (c) From Vedas to Mahatma Gandhi, the story has been one of experiments based on truth. (d) The Bible says, “Ye shall know the truth and the true shall make you free”.
  • Economic and Political Weekly February 18, 2006

    Nobody suggests that in the name of truth, scurrilous and baseless insinuations will be allowed to go unpunished. But certainly the courts can distinguish truth from trash.

    This proposition that truth should be allowed to be a defence in a contempt case has many distinguished supporters, Soli Sorabjee being one of them. Even Justice Krishna Iyer observed (in the case of Baradakanta vs Registrar of Orissa High Court AIR 1974 SC 710 at 735), that the cornerstone of contempt law is the accommodation of two constitutional values – the right of free speech and the right of independent justice. Harold Laski wrote in his article (published in Harvard Law Review in 1928) “Procedure for Constructive Contempt in England”, “…the examination of what the Judge has done, the analysis of his reasoning, the weighing of his results, the discussion of his conduct are essential to the formation of the opinion, which in a democratic state, ultimately determines the trend of legislation …Without scrutiny of this kind the dangers of judicial conservatism will be immeasurable”.

    Since the present judicial enunciation that truth is not a defence in a contempt case could not be changed except by a decision by a large division bench of the Supreme Court, there was no other way but to introduce a statutory change by amending Section 4(A) of the Contempt of Court Act.

    Contempt Law Amendment

    The present proposition to amend the contempt law is good but not good enough. It does not go far enough. The whole issue is about whether the truth is in the “public interest” or not. The Constitution Review Commission had recommended the inclusion of the term “public interest” but the Parliament’s standing committee had argued that the “public interest clause” should be deleted from the bill since there was a fear that the offender would be forced to establish the truth in the public interest failing which he would be hauled up for contempt. The bill is reported to have vested with the power of defining public interest with the court itself. This is more regressive than what the suggestion was by the parliamentary committee. My point here is that whether the courts are given expressly the power to define public interest or not, so long as the expression “public interest” occurs in the act, the court can always assume the power to interpret it. The jurisdiction of the court cannot be taken away. So the only remedy that I can give against reverting back to the old situation is that if the expression public interest is at all to be included, there should be a provision that the case would be tried by a different bench than the bench which is particularly offended by a statement or which is the initial mover of the case. This will bring in a certain amount of neutrality to the trial.

    The second reason why an element of doubt about the success of the amendment still persists is that while the bill has merely proposed the amendment of the contempt act, no corresponding action is to be taken by the government to amend the Constitution. The Article 142(2) gives power to the Supreme Court to punish any contempt of itself. Similar power of the high court is in the Article 124 of the Constitution. The Constitution Review Commission has recommended that a mere amendment of the contempt law may not suffice because the power of the apex court and high courts to punish for contempt is recognised by the Constitution. An amendment to the Constitution could be introduced by providing for truth as a defence or by referring to any law being passed by the Parliament for this purpose.

    The third reason why the present bill being accepted and recommended by the cabinet is not good enough is that it is silent on the recommendation of the Constitution Review Commission that the power of court to punish for contempt should be limited to the Supreme Court and high courts and as a privilege to the Parliament and the state legislatures. The recommendation was the following: “No other court, tribunal or authority should have or be conferred with, a power to punish for contempt of itself”. It should have been an important step if the power was limited as suggested. A tribunal or a lower court in that case would have to make out a case for punishing for contempt against itself and file such a case before the high court against the alleged contemner. Cases of frivolous nature would then be ruled out and also fair criticism could be accommodated.

    However, the step taken is in the right direction and that is why it is a half victory for truth. This would purify the judiciary in the fire of fair criticism by right thinking people of whom there is no dearth in this much maligned country.



    Economic and Political Weekly February 18, 2006

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