Indirect Tax Practitioners Association v R.K. Jain (2010)

This is the case that put the 2006 amendment to s. 13 of the Contempt of Courts Act to work. Section 13(b) now lets a court permit justification by truth as a defence, if it is in the public interest and the plea is bona fide. Here the Supreme Court said that truth "should ordinarily be allowed as a defence", described a journalist who exposed malpractice in a tribunal as a whistleblower, and dismissed a contempt petition brought by a body of tax practitioners — with heavy costs against them.

For the ethics paper it matters on two fronts: it states when criticism of a judicial institution becomes contempt, and it rebukes a professional association for using contempt to silence a critic.

R.K. Jain, editor of the Excise Law Times, had written critically about the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) for years. In an earlier contempt case (Contempt Petition (Crl.) No. 15 of 1997) he had filed an undertaking on 25 August 1998 that in future serious complaints about the Tribunal would first be brought to the notice of the Chief Justice of India and/or the Ministry of Finance, and that he would wait a reasonable time for a response or corrective action before taking further action. The Court accepted the undertaking and discharged the notice.

In 2008–09 Jain wrote a series of letters to the Finance Minister, the Revenue Secretary, the President of CESTAT (the Tribunal's successor) and others, pointing to irregularities in appointments, postings and transfers of members, changes in pronounced orders, and unusual orders of one Bench. Nothing appears to have been done. On 1 June 2009 he published an editorial, "CESTAT PRESIDENT SETS HOUSE IN ORDER - ANNUAL TRANSFERS FOR MEMBERS INTRODUCED - REGISTRY IN LINE", which praised the new President's reforms but also criticised the appointment and seven-year posting at Bangalore of one member, Shri T.K. Jayaraman, and referred to orders of his Bench that the Karnataka and Kerala High Courts had set aside with adverse comment.

The Indirect Tax Practitioners Association, Bangalore, whose members appear before CESTAT, complained to the President of CESTAT, who set up a two-member Inquiry Committee. The Association then, with the Attorney General's consent, filed this contempt petition under Articles 129 and 142, alleging breach of the undertaking and criminal contempt by scandalising the Tribunal.

1. Did the editorial breach the undertaking given to the Court on 25 August 1998?
2. Did the editorial scandalise CESTAT or interfere with the administration of justice so as to amount to criminal contempt under s. 2(c)? And can the voice of a citizen who genuinely believes such a body is not functioning well be "muffled by using the weapon of contempt"?

The petition was dismissed, and the Association was ordered to pay costs of Rs. 2,00,000 — half to the Supreme Court Legal Services Committee and half to the respondent.

No breach of the undertaking

Before writing the editorial Jain had written repeatedly to the Finance Minister, the Revenue Secretary and others. "The sole purpose of writing those letters was to enable the concerned authorities to take corrective measures but nothing appears to have been done by them to stem the rot." There was no material showing any remedial action. So he could not be held guilty of violating the undertaking.

The line between fair criticism and contempt

The Court began from the value of free speech and the tolerance courts are expected to show. "Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements." Such criticism is not contempt "except when such criticism is ill motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons."

The test, in the Court's words: "Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the Court would use this power." The Court cited In re S. Mulgaokar and P.N. Duda v P. Shiv Shanker as examples of this approach, and set against them the warning in Narmada Bachao Andolan v Union of India that free speech gives no licence to misrepresent the court's proceedings.

Applied to the editorial

The Court found nothing in the editorial that attempted "to lower the authority of CESTAT or ridicule it in the eyes of the public". It recorded facts about transfers and postings and the substance of orders set aside by two High Courts. The editorial "must have caused embarrassment to functionaries of the Central Government and CESTAT and even some members of the petitioner-Association but that cannot be dubbed as an attempt to scandalize CESTAT as a body or interfere with the administration of justice." In publishing it, Jain "had merely discharged the constitutional duty of a citizen enshrined in Article 51A(h)." The Association did not claim that any of the facts were wrong.

Truth as a defence under s. 13

"The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e. truth." The Court laid down: "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 scandalize the court or is an interference with the administration of justice." As the petitioner had not suggested that anything in the editorial was untrue or distorted, there was no reason to reject Jain's assertion that it was based on true facts and written to secure corrective action.

The whistleblower

"In our view, a person like the respondent can appropriately be described as a whistleblower 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."

The petitioner's conduct

The Court agreed that the petition "lacks bonafide and is an abuse of the process of the Court". A body of professionals appearing before CESTAT was expected to be interested in its transparent functioning; instead it denounced the editorial and misled the Attorney General by suppressing the fact that the President of CESTAT had already appointed an Inquiry Committee. "We are sorry to observe that a professional body like the petitioner has chosen wrong side of the law."

Fair criticism of a judicial or quasi-judicial institution is not criminal contempt; the contempt power will be used only where the criticism transgresses all limits of decency and fairness, lacks all objectivity, or is a deliberate attempt to denigrate the institution. Under s. 13(b) of the Contempt of Courts Act as substituted in 2006, truth should ordinarily be allowed as a defence where it is in the public interest and pleaded bona fide, unless it is a camouflage for a deliberate or malicious attempt to scandalise the court or interfere with the administration of justice.

• Direct question: When does criticism of a court amount to contempt by scandalising? Is truth a defence? Give s. 2(c), the "transgresses all limits of decency and fairness" test, and s. 13(b) as applied here.
• Ethics angle: Discuss the duty of the Bar towards fair criticism of judicial institutions. The Court's rebuke of a professional association for filing a frivolous contempt petition, and misleading the Attorney General, is a strong point.
• Problem question: a legal journalist publishes true, documented criticism of a tribunal member after complaining to the authorities without result. Apply this case: no contempt; truth and public interest protect him.
• Links: read with In re S. Mulgaokar and P.N. Duda v P. Shiv Shanker, which the Court relied on, and with the other Unit 4 contempt cases on the limits of criticism.