History Supreme Court of India

Making room for truth

Satyameva Jayathe” – the phrase that is part of the National Emblem and placed in courtrooms, over the judges and the Bar, is an assertion and an aspiration. It comes as a matter of surprise then, that for close to six decades, our Republic entertained a charge that denied truth as a defence. The contradiction is heightened because the prohibition was with respect to a charge of criminal contempt – a power justified as necessary to protect the majesty of the court and to preserve its dignity from scurrilous onslaughts. The court would protect its majesty by invoking powers of contempt, even if such contemptuous conduct were justifiable as the truth, which was proclaimed in the interests of public good. While common law courts elsewhere had recognised truth to be a defence, the courts in India chose to remain where they were.

A scene from the 1913 film, Raja Harishchandra. The image in the article banner is of the painting Harishchandra by Raja Ravi Varma.
A scene from the 1913 film, Raja Harishchandra. The image in the article banner is of the painting Harishchandra by Raja Ravi Varma.

Very early in its life, the Supreme Court had an opportunity to dwell on this question. In Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149, the contemnor sought to evoke the defence of truth in answer to a charge of contempt. While dismissing the plea on facts and speaking for a bench of five judges, Justice Mukherjea observed:

The article in question is a scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute… As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defence at all in a proceeding for contempt.

The emphasised words ought to have paved the way for the development of the law in that direction. However, it was close to two decades before the Supreme Court dwelt on this question again. There were numerous opportunities before several high courts to take the law forward, but none materialised.

The Andhra Pradesh High Court, in Advocate General v. Sheshagiri Rao, AIR 1966 AP 167, held that in a proceeding for contempt, the truth of the offending statement was no defence. The Allahabad High Court, in G.N. Verma v. Hargovind, AIR 1975 All 52, also held that evidence to justify the allegations amounting to contempt could not be allowed. In Sher Singh v. R.P. Kapur, AIR 1968 Punj 217, a full bench of the Punjab and Haryana High Court, after making a survey of some pre-Independence judgments, held:

In not one of these cases was evidence allowed to be introduced in justification on the matters listed above on which Respondent 1 has said that evidence should have been allowed.

The position was affirmed by the Bombay High Court in V.M. Kanade v. Madhav Gadkari, 1990 CriLJ 190 and by the Andhra Pradesh High Court in Advocate General v. Rachapudi Subba Rao, (1991) 1 MLJ 1. The Kerala High Court did not stop there. In Advocate General, Kerala v. Kunchacko, 1965 KLT 871, apart from dismissing the contention that truth was a defence to a charge of contempt, it was also held that any attempt to justify the contemptuous statement or to prove its correctness by adducing evidence would itself constitute fresh contempt. The judgment was pronounced relying on a pre-Independence judgment of the Lahore High Court in K.L. Gaiba, 1942 Lah 105.

The question was put to rest by the judgment of the Supreme Court in Perspective Publications Ltd. v.The State of Maharashtra, AIR 1971 SC 221. Three judges unanimously held that truth was no defence for a charge of contempt. It was held:

It may be that truthfulness or factual correctness is a good defence in an action for libel, but in the law of contempt there are hardly any English or Indian cases in which such defence has been recognised. It is true that in the case of Bathina Ramakrishna Reddy, (1952) S.C.R 425, there was some discussion about the bona fides of the person responsible for the publication but that was apparently done to dispose of the contention, which had been raised on the point. It is quite clear that the submission made was considered on the assumption that good faith can be held to be a defence in a proceeding for contempt. The words ‘even if good faith can be held to be a defence at all in a proceeding for contempt’ show that this court did not lay down affirmatively that good faith can be set up as a defence in contempt proceedings. At any rate, this point is merely of academic interest because no attempt was made before the High Court to establish the truthfulness of the facts stated in the Article.

The decision was unfortunate on two counts. It practically ignored the tone and tenor of the decision in Ramakrishna Reddy, (supra) which the present bench held, did not lay down any absolute rule that truth was a defence. Secondly, the decision clearly ignored the trends in comparable common law jurisdictions. Though the law of England did not formally recognise such a defence, the very concept of contempt by way of scandalising the court, was becoming obsolete. The courts in New Zealand had by 1978, recognised truth as defence for contempt in Solicitor General v. Radio Avon Ltd., [1978] 1 NZLR 225. In R. v. Nicholls, (1911) 12 CLR 280, after referring to the judgment of the Privy Council in In the Matter of a Special Reference from Bahamas Islands, 1 (1893) A.C. 138, the High Court of Australia held:

It is said by Mr. Weigall that they suggest a want of impartiality, but we do not find that in them, and I am not prepared to accede to the proposition that an imputation of want of impartiality to judge is necessarily a contempt of Court. On the contrary I think that, if any Judge of this court or of any other court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Courts in any manner likely to be brought before it, any public comment on such an utterance, if it were a fair comment would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of Libel.

It was clear that courts elsewhere were leaving more room for criticism, when it could be shown that the same was for the benefit of the public and was made in good faith.

However, the Indian law remained frozen at Perspective Publications, (supra) – which has not been overruled till date. Finally, in Subramanian Swamy v. Rama Krishna Hegde, (2000) 10 SCC 331, the question was referred to a Constitution Bench, and it is still pending consideration. Meanwhile, the law in Perspective Publications continues to hold good.

It then took legislative initiative in 2006 for a change in the law. Parliament passed Act 6 of 2006, which amended Section 13 of the Contempt of Courts Act, 1971, by way of introducing the new sub-section (b), which reads:

The court may permit, in any proceeding 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.

For once, I am enchanted enough to call this a reversal of roles. This time, the legislature stepped in to bring the law in tune with the constitutional scheme of fundamental rights, and also with the trends in the common law courts elsewhere. Unfortunately, it took 56 years for a democratic country to recognise truth as a defence for contempt – when we proclaim and state with pride “Satyameva Jayathe”.

The amendment now opens a new right for an alleged contemnor to lead evidence in support of his acts or statements. This is to have serious implications on the limits of criticism that can be levelled against the courts and individual judges. Anyone who has evidence to give can now indulge in criticism. The significance of the amendment is apparent with Mr. Prashanth Bhushan filing a supplementary affidavit detailing the charges of corruption against some of the former chief justices and with the legendary Mr. Shanthi Bhushan joining in.

The real effect of the amendment is that it now compels courts to accommodate criticism. It allows a citizen to criticise the judiciary without fear of punishment for contempt, where he has materials in his possession to show that such criticism is justified. The Supreme Court is yet to deal with a case that squarely rests itself on the amended section 13. However, signs of change are already visible. In a judgment dated 13/8/2010 in Indirect Tax Practitioners Association v. R.K. Jain, Contempt Petitions (Crl.) 9/2009 and 15/97, while dealing with a case of contempt by way of scandalising the court, the Supreme Court observed:

The matter deserves to be examined from another angle. The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e. 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. In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice.” (para 22)

Therefore, the courts have now been called upon to devise a new standard – one that balances the undoubted requirement of protecting the majesty and dignity of the court, and the enlarged right of criticism, which citizens now enjoy. With more room now left for responsible criticism, it is perhaps a reminder to citizens (and the Bar) that silence is not an option in a democracy. The question of what benchmark to set was answered long ago. In his inimitable style, Lord Denning had said in R. v. Commissioner of Police Ex. p. Blackburn, [1968] 2 All E.R., 319:

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the Broadcast, to make fair comment, even outspoken comment, on matters of public interest.

The majesty and the dignity of the court is no end in itself. Like the other branches of the government, it has to be left open to public criticism and scrutiny – the sine qua non for any lasting democratic institution that is to inspire public confidence.

(Mahesh Menon is an advocate at the Kerala High Court.)