It has taken a long time for the Union government to brave the resistance of the judiciary against amending the Contempt of Courts Act, 1971. There has been growing demand for doing away with the COCA so that it is not unusually and excessively used by the judiciary against the persons and institutions including media, who dare to expose those adorning the high constitutional positions of judges of the Supreme Court and high courts.

The Supreme Court could summon an editor of a daily newspaper which carried a news item, though not defamatory or contemptuous but allegedly based on false information, to pull him up in an open hearing. When the editor's counsel asserted that the information published was not factually incorrect, the court could remind him promptly that "truth is not a defence" in contempt-of-court cases. The lawyer would be forced to withdraw and leave it to the court to decide the matter, without taking note of the editor's plea that the news item was not untrue.

But the court took a contrary view while dealing with Shiv Sena chief Bal Thackeray, against whom it had initiated contempt proceedings. In the Sena's mouth piece Samna Thackeray had questioned the right of judges who were hearing petitions alleging electoral corrupt practice by him. Thackeray had called Muslims names and also said that it was beyond the jurisdiction of the country's highest court to look into what he had to say, and what he always believed in. The court asked Thackeray's lawyer Ram Jethmalani to counsel his client to apologise. Otherwise, the judges warned, they would send him to jail. The counsel, instead, counselled the court not to resort to the extreme step as ordering Thackeray's arrest would lead to mass unrest in the country. Later, the contempt proceedings were dropped. The judges said they hoped that the people holding high positions in society would not utter such words that might lead to unrest among the members of a community.

Yet, again, the court absolved former Union law minister P Shiv Shankar of committing gross contempt when he declared publicly that the Supreme Court was meant for the "bride burners, diamond smugglers, corrupt and mafia". The court did not find Shankar's utterances serious enough to have him hauled up under the COCA. His sweeping allegations against the Supreme Court were considered to be his personal feelings and also something which the Congress leader had said in the public interest.

Similarly, former bureaucrat and the then Trade Fair Authority of India's chairman Mohammad Yunus got away with his statement about the judges who ruled that the members of Jehovah’s Witnesses could not be compelled to sing the national anthem or asked to stand in respect of the national flag . Yunus had said these judges deserved deportation as they were anti-national. The court passed a detailed judgment, but did not order any action against Yunus. In another case, however, a poor Muslim litigant who had lost everything in coming up to the apex court and lost his case, was sent to the jail for committing its contempt. He pleaded before a judge, who also happened to be a Muslim, to have pity on him and on his children who would be rendered homeless . He invoked the name of religion to secure the court's indulgence. He was however found guilty of contempt and sent to jail.

Justice must be done. It must also seen to have been done. Thus, higher constitutional obligation now vests on the judges to do complete justice which must be seen to have been done, no matter if members of their own profession are in the thick of some controversies.
These and many other instances of COCA demonstrate that absolute judicial discretion plays a vital role in dispensation. The same is true with judicial pronouncements. The core question, however, is whether the proposed amendment in the COCA by injecting the element of "truth" in it as a defence would be sufficient to empower a contemner to defend his actions or words, which may have been construed as gross contempt by the judges.

The government has been opposed to any amendment in the COCA. But the spate of allegations against several judges and exposes of their dealings with vulnerable categories of people, perhaps exerted pressure on the law ministry to review its decision. In the Karnataka judges sex scandal case, a number of journalists, editors and publishers have been facing prosecution by the high court for indulging in character assassination of judges. The media had written about the conduct of judges when they were not performing any official duty as prescribed in the Constitution or any law. The reports were based on police information and other material. The truth itself is not the issue; the only questions is whether the media crossed its limits. The matter will now be decided by the Supreme Court later this year.

Be that as it may, the amendment, in the government's view, will make the judiciary more accountable. The amendment provides that truth can be a defence if it is in the public interest. What is in the public interest, will thus become the basic issue, which again the courts will decide.

The proposed amendment in section 13 of COCA says: Provided that the court may permit the defence of justification by truth on satisfaction as to the bonafides of the plea and it being in public interest. The Law ministry's explanation is that the amendment is based on the recommendation of the Constitution Review Commission. However, the CRC recommended that the power of a court to punish for contempt of itself be limited to the Supreme Court and high courts, and as a privilege, to Parliament and state legislatures. ``No other court, tribunal or authority should have, or be conferred with, a power to punish for contempt of itself'', the CRC said.

Truth itself has now become a bone of contention. Its definition depends on the perception of an authority dealing with a contempt case. Would it be justified that an authority "aggrieved" by what the media has said about it, becomes the complainant, investigator and prosecutor besides being the judge? In a suo moto complaint of contempt, that is what would happen. This will not change with the amendment.

Justice must be done. It must also seen to have been done. Thus, higher constitutional obligation now vests on the judges to do complete justice which must be seen to have been done, no matter if some members of their own profession are in the thick of controversies.