Sukumar Mukhopadhyay: Truth now protects whistleblower in contempt case

Rejoice that truth is the best policy. Honesty has always been regarded as best policy. However, in effect neither truth nor honesty was ever practically regarded as the best policy. The truth-tellers were always intimidated in public life and even, unfortunately, in legal litigations. We are now on the path to economic liberalisation to a large extent since 1991. However, economic liberalisation must be accompanied by liberalisation in the legal field as well. It is a matter of great satisfaction that in the field of contempt cases this is precisely what has happened now. We have now got a judgment pronounced on 13.8.2010 by the Supreme Court in the case of Indirect Tax Practitioners Association vs R K Jain reported in 2010(256)ELT641(SC).  It is a great day for honesty and truth.

Historically speaking truth has been for a long time a victim in legal litigations. It has never been accepted as a defence in a contempt case. I remember to have attended a seminar on contempt law in 1980s in Calcutta. It was addressed by very senior lawyers who quoted from so many judgments of the High Courts and the Supreme Court to make the point that truth was not a defence in a contempt case. 

When I spoke that truth should be made a defence, the lawyers who only swear by judgments and do not look to the broader aspect of life in the society at large, made it seem that I was speaking some outlandish idea. In practice the Ministers has made certain recommendations and suggestion for consideration of the Government of India.

The 13th Finance Commission has also examined various aspects relating to GST and how it is beneficial to trade and governments. The Department of Revenue has made certain observations/reservations on both the reports and those are available for comments/suggestions in its website.

Since the GST is to usher in tax reform to benefit trade and commerce and will empower the states to generate more revenue by entrusting them to widen the tax base which were within the exclusive jurisdiction of Centre, a detailed examination of taxes to be subsumed is of prime concern to

situation went to such an extent that even if somebody told  the truth about the judiciary or about a judge and the truth could be established positively with facts and figures, it was still a contempt of court if the court thought that the truth demeaned the status of the judiciary. 

However, several courageous people went on fighting for placing truth at the high pedestal to which our National Emblem places it. On the National Emblem it is written Satyameva Jayate — Truth Alone Triumphs —  is the national motto of India. It is inscribed in Devanagari script at the base of the national emblem, which is an adaptation of the Lion Capital of Ashoka at Sarnath, near Varanasi in the north Indian state of Uttar Pradesh. The origin of the motto is a well-known mantra 3.1.6 from the Mundaka Upanishad. As early as 1952, the Supreme Court had observed in the case of Bathinda Ramakrishna Reddy  vs State of Madras — AIR1952SC149, that “the allegations were true obviously it would be to the benefit of public to bring matters into light.  But if they were false, they cannot but undermine the confidence of the public in the administration of justice into disrepute”. 

The Sanyal Committee Report dated 28.2.1963 at p.43-46 has considered fair criticism of judicial acts and decisions of defence.  Soli Sorabji pointed out “surely performance of public duty cannot be penalised as contempt”, 1978 Advocate, p.21. When Soli Sorabji was the Attorney General, he took a lot of initiative to ensure that the Contempt of Court Act is amended. Finally it has been amended in the following terms.

Courts (Amendment) Act, 20061

[NO. 6 OF 2006]

[March 17, 2006]

An Act further to amend the Contempt of Courts Act, 1971

Be it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:—

1. Short title.—This Act may be called the Contempt of Courts (Amendment) Act, 2006.

2. Substitution of new section for Section 13.—In the Contempt of Courts Act, 1971 (70 of 1971), for Section 13, the following section shall be substituted, namely:—

“13. Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force,—

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

(b) 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.”.

After this amendment it has been possible for the Courts to hold that even if truth told is a criticism of the judiciary for which a contempt case is proceeding, it can be treated as not a contempt so long as it is in the public interest. 

Some judicial luminaries wanted that the Constitution should be amended to accommodate in the Article 129 or 215 to make it clear that truth will be a defence in a contempt case.  However, that could not be possible but the present amendment of the Contempt of Court Act is also a very positive development. 

 After this amendment the present case between Indirect Tax Practitioners Association and R.K. Jain is reportedly the first case of its kind  where the Supreme Court has upheld the position that since the alleged contemner wrote the editorial criticising the operation of the Tribunal (CESTAT) for the purpose of improving it and not for the purpose of  insulting it, there was no contempt .  The Supreme Court has gone in details in to all the aspect mentioned in the editorial where the judgement of the CESTAT has been commended adversely by the High Court.  Considering all these the Supreme Court has observed the following.

"21. Although, the petitioner has tried to project the editorial as a piece of writing intended to demean CESTAT as an institution and scandalize its functioning but we do not find anything in it which can be described as an attempt to lower the authority of CESTAT or ridicule it in the eyes of the public. Rather the object of the editorial was to highlight the irregularities in the appointment, posting and transfer of the members of CESTAT and instances of the abuse of the quasi judicial powers. What was incorporated in the editorial was nothing except the facts relating to manipulative transfer and posting of some members of CESTAT and substance of the orders passed by the particular Bench of CESTAT, which were set aside by the High Courts of Karnataka and Kerala.”

The Supreme Court has also observed that the amended Section 13 represents an important legislative recognition of one of the fundamentals of our value system, that is, truth.  he Supreme Court has called Shri R.K. Jain as a Whistleblower. Whistleblower has been defined by the Supreme Court in the following words. “A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruptio”The Supreme Court has made a very clear observation in favour of RK Jain  when it said: “In our view, a person like the respondent can appropriately be described as a whistle blower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Articles 129 or 215 of the Constitution or the provisions of the Act”.

This judgment of the Supreme Court will be quoted in future by all those who will speak the truth to expose the justice in the system even if it amounts to criticism of the judiciary and if they are brought before the court in a contempt case.  They will win in the contempt case and truth will triumph if it is in the public interest. This will become a legendary judgment in future.