It has taken Indian courts seventy-three years to accept and state what the United States Supreme Court ruled upon in 1941. After a long period of monitoring the media’s ability to criticise their functioning, on 23 July, a Constitution Bench of five judges of the Supreme Court ruled that the truth, if said bona fide (in good faith) and in the public interest, is a valid defence against charges of contempt of court. The court was ruling on a case involving journalist Arun Shourie, who incurred the judiciary’s wrath for an 13 August, 1990 editorial in the Indian Express.

The editorial was neither screed nor based on speculation and rhetoric. Premising his arguments on the basis of the opinion of a former chief justice of India, Shourie contended that Justice Kuldip Singh, then a sitting judge of the Supreme Court, who was heading a commission to inquire into graft charges against Ramkrishna Hegde, then chief minister of Karnataka, had ignored and suppressed facts to suit his case. On the advice of the Attorney General, the court suo motu (on its own) charged Shourie with criminal contempt. Allegations made by politician Subramaniam Swamy against Shourie in the same vein were clubbed together with it.

The Supreme Court cited Section 2(c) of the Contempt of Courts Act 1971, which states that any expression that could scandalise or lower the authority of any court was liable for criminal contempt. In 2006, Sec 13(b) was added as an exception to this: in case a court was satisfied that the expression – allegations, criticism and the like – was not malicious and made in public interest, the writer could rely upon the truth as a justification. Thus, before prosecuting anyone, the court would have to verify if there was any falsehood in the charges leveled. This would deter roving busybodies from hurling frivolous and vexatious allegations, while those striving for accountability would not have to cower in fear.

The CESTAT case
The bench also affirmed a 2010 decision by two Supreme Court judges in a case involving advocate RK Jain. Jain had written an article in a law journal in which he severely criticised the rampant malpractices in the Customs, Excise and Service Tax Appellate Tribunal. He charged a particular member of the CESTAT with being in cahoots with a clique of lawyers and indulging in flagrant violations of the law and judicial propriety. The aggrieved parties rushed to court, alleging that Jain’s actions would erode the people’s confidence in the tribunal, and demanding severe punishment. The court produced what was hailed as a landmark judgment at the time, lauding Jain for selflessly striving towards the cause of judicial accountability.

Punitive history
But there is a long list of incidents where courts have cracked down harshly on the media and journalists whenever they have smelled a whiff of criticism.

In 2013, Justice Gyan Sudha Mishra shot off a fire-and-brimstone letter to the Times of India, charging one of its senior journalists with “contemptuous reporting” because he wrote that Supreme Court judges were habitually turning up late for hearings, thereby contributing to the burgeoning pendency of cases. The journalist stood his ground, asserting that his report was based entirely on facts, and the matter was laid to rest. But it was evident that he escaped being formally charged with contempt only by a whisker.

In 1995, the Andhra Pradesh High Court, ordered the deletion of two scenes from Gentleman, a commercial film, and threatened director and producer with criminal contempt unless they issued an apology. The relevant scenes showed judges as political lackeys and susceptible to bribery.

In 2004, Zee News’ Vijay Shekhar conducted a sting operation that claimed to show how an Ahmedabad magistrate was accepting money to issue arrest warrants against anyone the payer named. There was a CBI inquiry that pointed to alleged complicity. A Supreme Court observed that the “role of the magistrate was quite revealing”. Yet three years later the Supreme Court demanded an unconditional apology from the channel, arguing that the news story had caused grave disrepute to the judiciary.

Every media house and journalist is compelled into silence when possible prosecution for contempt looms over their heads. Yet, at a time when the judiciary is facing multiple charges of corruption, such criticism is essential to the rule of law – a purpose higher than the freedom of the press.

When the Karnataka High Court was hit by media revelations of a sex scandal in which senior judges were involved, a full bench charged 56 persons from 14 newspapers and magazines with criminal contempt for scandalising the judiciary. The Supreme Court stayed the contempt proceedings, saying that the matter needs to be given a quietus (solved amicably). At that time, CJI Khare said that he would personally reward the media if they came out with the truth, and unequivocally stated that truth must be allowed as a valid defence in contempt cases. The Constitution Bench’s decision vindicates his stand.