Soli loquies

Truth shall prevail: Our country proclaims Satyamev Jayate — Truth Shall Prevail — as its motto. The Good Book says you shall know the truth and the truth shall make you free. Yet if a person speaks the truth about the corrupt conduct of a judge, he would be guilty of contempt and find himself behind bars. This anomaly has now been substantially removed with the recent amendment to the Contempt of Courts Act which permits the defence of a bona fide plea of truth.

The archaic doctrine that ‘truth’ is no defence in a contempt action had led to unsatisfactory consequences. It has been used by judicial officers as a shield for their judicial misconduct. Its application without qualification led to self-censorship in the press. Journalists who after a thorough investigation discovered incontrovertible evidence of judicial impropriety were deterred from publishing it. Consequently the public, especially the consumers of justice, were kept in the dark. Improper judicial conduct can stem also from non-monetary considerations; for example, if the orders of a judge over a period of time clearly establish persistent bias against or in favour of a particular community or caste or class.

The main argument against permitting the defence of truth is that publication of facts even if true would shake public confidence in the judiciary. In my view, where the corrupt conduct of a judge is an open secret and is doing the rounds, its exposure and consequential action in appropriate cases against the deviant judicial officer would enhance rather than impair confidence in the judiciary.

The more thoroughly expression is suppressed, the more it is likely to fuel, rather than allay, suspicions about the conduct and attitudes of the judges. Besides, sending a person to jail without even permitting him or her to establish the truth of the publication would be deprivation of personal liberty without a fair procedure and thus be violative of Article 21 of our Constitution. Shutting out the plea of truth altogether would also be an unreasonable restriction on the freedom of the press.

Grave apprehensions are expressed that permitting defence of truth will encourage disgruntled litigants to hurl wild allegations against judges who have decided against the party. This objection overlooks that allegations without any cogent supportive material would not be permitted. Frivolous pleas can be ruled out at the threshold by a proper vetting procedure. Besides there can be a provision that if the allegations made are reckless and thus not bona fide, the person will be punished with fine and imprisonment.

A recent judgment in England has recognised the defence of truth in contempt action, as has been done in other common law countries, notably Australia and New Zealand. No disastrous consequences have ensued. No doubt there are risks, but in life as in love, if nothing is ventured, nothing is gained.