In the Mid-Day case, the Delhi High Court sentenced three senior journalists and a publisher of Mid-Day to four months imprisonment, after having found them guilty of contempt of court, following their expose of former Chief Justice Y.K. Sabharwal’s alleged misconduct while in office. This morning, Manoj Mitta (go to Times City, `Truth about hole in contempt law’ p.2) suggested in The Times of India that there is a loophole in the latest amendment to Contempt of Courts Act, which provided for truth as a defence. His reading was that the proviso enabling truth as a defence was added to Section 13 of the Act, which deals with sentencing of the contemner. Hence, he suggested that at the time of arguments over sentencing, the Court would have no option but to grant the plea of truth as a defence, even though the same Court might have denied this plea while hearing the plea of the defence opposing the contempt charge against the accused.

Manoj Mitta noted: This is probably the first time the new Section 13 will be tested in a contempt case against journalists. But as ill-luck would have it, the occasion for testing it did not arise today.

As the arguments in the Delhi High Court before the Division Bench headed by Justice R.S.Sodhi revealed, the proviso to Section 13 was invoked by the defence counsel, Rohit Kumar. He also referred to the stay of their conviction by the Supreme Court, and in view of the stay, he pleaded that the Bench should not impose a sentence, but only consider imposing a fine. The Bench however, found these arguments irrelevant to the question of sentencing, as the contemners were not ready to apologise. The Bench, therefore, considered imposing the maximum sentence of six months imprisonment, on the contemners, in accordance with the Act. The Bench finally imposed four months imprisonment on the contemners, but released them on bail, as directed by the Supreme court which granted stay of conviction.

Manoj’s interpretation of Section 13 and the proviso added to it in 2006 to enable truth as a defence was quite valid. One expected that both the Bench and the defence counsel would read his story before the proceedings began in the High Court. Yet, the interpretation did not make any impact on the proceedings. Why? Because the Bench was smarter. While holding the contemners as guilty of contempt, the Bench did not think the proviso to Section 13 was relevant, even though it was raised by Shanti Bhushan. In their brief order too, the Bench took note of his argument that truth is a defence, but ignored it, because it took a broader view of the contempt charge.

The Bench suggested that the contemners were guilty of contempt of the court, because Justice Sabharwal’s brother Judges who sat with him in the sealings case must have been scandalised by the allegations against Justice Sabharwal. For these brother Judges, the truth of the allegations against Justice Sabharwal did not matter. Therefore, the Bench did not feel the need to consider the plea of truth as a defence.

While sentencing the contemners again, the plea of truth as a defence would have been relevant had Justice Sabharwal constituted a Single Judge Bench in the sealings case, and had not retired. In that context, truth of the allegations could have been tested. The Bench implicitly accepted the defence argument that contempt of Courts Act cannot be invoked, if the allegations were against retired Judges. Still the Mid-Day journalists were proceeded against because at stake was the honour of the brother Judges, who sat with Justice Sabharwal. The Bench alleged that the message being sent by the allegations was that the brother Judges connived at these allegations against Justice Sabharwal. As the allegations levelled by the Mid-day journalists were not against the brother Judges who are still in office, the question of granting the journalists’ plea for truth as a defence did not arise at all.

So, what is the lesson from the Delhi Mid-Day case?

No allegation of corruption can be levelled against any Supreme Court Judge, because no Judge sits singly,(except perhaps during vacations) and it is always possible to circumvent the provision for truth as defence by claiming that the brother Judge/s against whom motives were not attributed were scandalised by the allegations.
UPDATE(I have made certain factual corrections, subsequent to my post yesterday.) Looking at the coverage of the issue in today’s papers and on television, it appears that the suo motu use of the Contempt of Courts Act against the journalists by the Delhi High Court has backfired. Today, the issue no longer appears to be whether Justice Sabharwal is clean or not. The issue is the question of the freedom of media and the effectiveness of the amendment of the Contempt of Courts Act to provide for truth as defence. In a sense, the amendment has been effectively tested, even if the Court refused to consider the case against the Judges in the light of the amendment.