Yesterday, there was an interesting discussion on the CNBC on the Contempt of Courts Act. The participants were Prashant Bhushan, former Judge of the Supreme Court of India, P.B.Sawant and senior advocate Soli Sorabjee. Karan Thapar moderated the discussion, in his inimitable style, without specifically discussing the merits of the Delhi High Court order in the Mid-Day case, as the same has been appealed against in the Supreme Court, and therefore, becomes sub-judice.

All participants agreed that truth is a valid defence to the charge of contempt, after the amendment of the Act. Therefore, the Court which issues notice of contempt to the alleged contemner, should inquire into the veracity of the allegations made by the accused against the Judge, before holding the accused guilty of contempt. If the Court does not hold such an inquiry, then the order holding the accused guilty is not a valid order, and has to be held illegal.

Should the veracity of the allegations against the Judge fail to satisfy the Court, then the Court would be free to hold the accused guilty of contempt. Here, there were differences among the participants. Sorabjee suggested that it has to be a truthful allegation capable of being established. Karan Thapar suggested that the Delhi High Court order seems to have adopted a wider interpretation holding that any allegation, whether true or not, would tarnish the image of the Judiciary, and therefore, could result in contempt. Sorabjee disapproved of such an interpretation saying if the system is so infirm, then you need to cover up to maintain it.

Karan Thapar then referred to the article written by Justice Krishna Iyer in the Times of India recently. (The link is in one of my previous posts). He asked the participants to respond to Justice Krishna Iyer’s suggestion that Justice Sabharwal should show ethical and moral response, and face an inquiry himself to clear the air. Justice Sawant felt that the moral initiative rests with the present CJI to hold an inquiry, and that Justice Sabharwal too has the moral initiative to invite such an inquiry. Justice Sawant felt that we should give some time to the present CJI and Justice Sabharwal to make up their minds. Sorabjee, however, disapproved of the ethical obligation, saying such a mechanism is not contemplated in the Constitution. “Have a proper mechanism; silence is not an option”, he said.

There is one important aspect on which each of the three had different views: Prashant Bhushan supported the American doctrine of clear and present danger to replace the current provision on scandalising the Judiciary. Justice Sawant, however, wanted the Court to examine the intention of the alleged contemner; did he want to scandalise the Judiciary or not? Sorabjee was against importing the American doctrine, and was categorical that if you can’t prove allegation, then you are guilty of contempt.

But it was odd that Karan Thapar ended the programme, expressing the optimism that the Judges Inquiry (Amendment) Bill, recently vetted by the Parliamentary Standing Committee would perhaps be an answer to the dilemma on contempt. Neither the Bill nor the report has anything to say though on initiating a complaint against a retired Judge. The Bill and the report are here and here. My article on the report is also here.