When truth is no defence

Fifty years of satyamev jayate (let truth win) have left us saddled with a Supreme Court judgment which holds that truth is no defence against the charge of contempt of court. This judgment is State of Maharashtra vs Perspective Publications. The result is that the public never knows the truth of the judicial guerrilla warfare that goes on in the apex court for high court appointments and transfers. The same applies to the apex court appointments and especially the fights for the office of the Chief Justice of India. The legal business lobbies and the ruling politicians who partake of these fights for public office remain conveniently hidden from the public eye. The same judgment comes in handy to screen off public gaze into the functioning of those appointed. In the name of the independence of the judiciary and the contempt power against scandalising, courts are wholly opaque and not subject to truth about themselves. Supreme Court judges have shown no interest to suo motu review this judgmentand obviously the powerful legal business lobbies have little interest in initiating any such move. Yet the world over the move has been to practically scrap the contempt power based on scandalising of courts.Way back in 1941 in Bridges vs State of California, Justice Frankfurter of the United States Supreme Court had termed the offence of contempt by scandalising the court as “English foolishness”, which continued to exist in England. Justice Black dismissed the argument that the substantive evil of engendering “disrespect for the judiciary” could justify convictions for contempt of court. He held: “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of the American public opinion. For it is a prized American privilege to speak one’s mind although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probablyengender resentment, suspicion and contempt much more than it would enhance respect.”

The Supreme Court of India evolved from the denial of any fundamental right to a person in jail (A.K. Gopalan’s case) to the unity of fundamental rights in the property case of banks’ nationalisation, swung to a position worse than in Gopalan’s case during the Emergency (ADM Jabalpur case) and then made a whirlwind trip to declarations of affirmative action based on non-enforceable directive principles after the Emergency. This was based on its initial view that the American Constitution’s due process clause requiring and reading together of fundamental rights of the Indian Constitution did not apply to India and then a reversal of that view that left the due process clause itself far behind. But no such adoption of the American view on contempt of courts is in sight.

Even in England from where we have taken this contempt power of punishing for scandalising the courts, the power is virtually in disuse since noprosecutions have taken place under it for almost seventy years. Australia and New Zealand which do not have a constitutional protection of free speech as in US judgments have increasingly recognised that such a power in the hands of courts constitutes a severe oppression on free speech which is the basis of all democratic government. In 1996, the Supreme Court in the Tata Yellow pages case held that commercial advertisements were entitled to free speech protection. This marching with the times has bypassed the apex court’s power of contempt for scandalising and that truth is no defence to such scandalising.

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In Canada by a majority a bench of five judges in Regina vs Kopyto held that the English common law offence of punishing under contempt the scandalising of courts is unconstitutional. The offence was struck down as illegal being violative of the free speech protection in Canadian Character of Rights and Freedoms. The majority stated: “Hyperbole and colourful, perhaps even disrespectful language, may bethe necessary touchstone to fire the interest and imagination of the public to the need for reform and to suggest the manner in which that reform may be achieved.” It stated further: “The inclusion of contempt by scandalising the court in the regulated area could lead to orthodoxy and orthodoxy is neither essential nor desirable for the proper functioning of our judicial system. Courts and judges should be subject to criticism, no matter how extreme, they will function better as a result of it.” The N.N. Vohra committee set up by ruling politicians mentioned clearly members of the judiciary, apart from others, as part of the mafia that controls governance. The Supreme Court took judicial notice of the Vohra report in the Dinesh Trivedi and the hawala cases. Are we reaching a point where a committee set up by ruling politicians can scandalise without inviting contempt that citizens cannot?

This dual attitude to contempt has been visible over the years in the apex court which has let politicians go freeand even praised them for telling them about the justicing by the court (Shiv Shankar’s case), but punished ordinary citizens and small-town newspaper correspondents. The result is that in the judicial warfare one legal business lobby can publicise its version and the other cannot. The published version becomes the correct version. But then this is a consequence of the judiciary’s own doing on the scandal rule.