The Supreme Court on Wednesday dismissed a contempt petition against Arun Shourie for writing an editorial in The Indian Express on a sitting judge of the apex court in 1990 holding that truth is a defence in such proceeding and that a Commission of Inquiry lacked powers of issuing contempt.
Settling the legal proposition, a Constitution bench led by Chief Justice R M Lodha noted that truth was permissible as a valid defence in all contempt proceedings if such publications were in public interest and were made bonafide. The five-judge bench verdict is an authoritative pronouncement on the powers of a court to initiate contempt asserting the protection available in the law to the press.
The bench, referring to the provisions of the Contempt of Courts Act and the amendments brought into the law in 2006 that made truth a defence in the statute, upheld the findings of a two-judge bench judgment in 2010.
This judgment in R K Jain’s case had recorded: “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.”
The Constitution bench, also comprising Justices Anil R Dave, S J Mukhopadhaya, Dipak Misra and S K Singh, said that it approved the views expressed in the R K Jain’s judgment.
The bench also outlined the powers of a Commission of Inquiry, which was headed by a sitting Supreme Court judge in 1990 when Shourie’s editorial commented upon its functioning.
Subramanian Swamy, now a BJP leader, had sought initiation of contempt proceedings against Shourie, the then editor of this newspaper, claiming that the editorial was a scandalous statement in respect of a sitting Judge of the Supreme Court and the judiciary. His plea alleged that the editorial lowered the authority of the Court as well as shook public confidence. Another contempt proceeding was initiated suo motu by the SC after procuring an opinion from the then Attorney General Soli Sorabjee. The issue was referred to the Constitution bench in May 1998.
Speaking on the authority of a Commission of Inquiry, the bench said that such a Commission “is not a Court for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge.”
It noted: “Merely because a Commission of Inquiry is headed by a sitting Judge of the Supreme Court, it does not become an extended arm of this Court. Such Commission is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by the Commission is of a legal character and it has the power to administer oath will not clothe it with the status of Court.”
The court said that a Commission is only a fact-finding body to enable the appropriate Government to decide as to the course of action to be followed and if aggrieved by any publication, its members require to make a reference to the high court concerned to exercise the power of “constructive contempt.”