INDIAN EXPRESS – RTN asia

In a significant judgment, a Supreme Court bench headed by Chief Justice of India R.M. Lodha has ruled that truth can be a valid defence in contempt of court cases, and dismissed a case filed by BJP leader Subramanian Swamy against journalist Arun Shourie. In his petition filed in 1990, Swamy had requested contempt of court proceedings to be initiated against Arun Shourie, the then chief editor of the Indian Express newspaper for an editorial. In the editorial, Shourie had severely criticized the findings of a commission headed by then sitting Supreme Court Judge Justice Kuldip Singh on the acts of Ramakrishna Hegde, the former Chief Minister of Karnataka. In his editorial, Shourie said: "If there had been any sense of honour or shame, a Judge would never have done any of this. If there were any residual sense of honour or shame, the Judge having done any of it and having been found doing it, would have vacated his seat. But this is India. Of 1990, the Commissioner Kuldip Singh having perpetrated such perversities will continue to sit in judgment on the fortunes and reputations of countless citizens. He will continue to do so from nothing less than the Supreme Court of India itself. Such is our condition. And so helpless are we that there is nothing we can do about such a 'Judge'." Subramanian Swamy filed a petition asking for action against Shourie. In his petition, Swamy said "It (the editorial) lowers the authority of this Court as well as shakes public confidence in it and amounts to criminal contempt of this Court. It is submitted that unless this Court acts promptly and if necessary suo motu in the matter, sitting Judges would be helpless and unable to defend themselves, and in the process, public confidence in judges and the courts would be eroded." A notice was soon issued to Arun Shourie in the matter. But in 1998, the case was referred to a constitutional bench. In its judgment delivered on 23 July, the Supreme Court bench quoted a two-judge Supreme Court judgment from 2006 in which the court had said that truth can be a defence in such cases. The 2006 judgment by a two-judge bench had noted: 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. Since, the petitioner has not even suggested that what has been mentioned in the editorial is incorrect or that the respondent has presented a distorted version of the facts, there is no warrant for discarding the respondent’s assertion that whatever he has written is based on true facts and the sole object of writing the editorial was to enable the authorities concerned to take corrective/remedial measures. The constitutional bench said it was in agreement with the above judgment, and truth can be a defense in such cases. "We approve the view of the two Judge Bench in R.K. Jain. Nothing further needs to be considered with regard to second question since the amendment in contempt law has effectively rendered this question redundant," it noted. The court also ruled on whether or not a Judge of the Supreme Court, or any other court, carries with him all the powers of his judicial status when he is acting as a fact finding commission. On this matter, the five-judge constitutional bench observed as follows: "We are also in agreement with the submission of Shri Mohan Parasaran, learned Solicitor General that a Commission appointed under the 1952 Act is in the nature of a statutory Commission and 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. "The Commission constituted under the 1952 Act is a fact finding body to enable the appropriate Government to decide as to the course of action to be followed. 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. That being so, in our view, the Commission appointed under the 1952 Act is not a Court for the purposes of Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge."

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SC dismisses Subramanian Swamy’s petition against Arun Shourie