AUGUST 16, 2010
By TIOL News Service
This is a Contempt Petition(Criminal). The petitioner is an association of Indirect Tax Practitioners at Bangalore.
The Respondent is the legendary Editor of Excise Law Times, RK Jain.
The subject is an editorial in the ELT
And Freedom of Press won handsomely.
“Whether by writing the editorial, which was published in Excise Law Times dated 1.6.2009 with the title "CESTAT PRESIDENT SETS HOUSE IN ORDER - ANNUAL TRANSFERS FOR MEMBERS INTRODUCED-REGISTRY IN LINE", the respondent violated the undertaking filed in this Court in Contempt Petition (Criminal) No.15 of 1997 and whether contents of the editorial constitute criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 (for short, `the Act') are the questions in this petition filed by Indirect Tax Practitioners' Association, Bangalore under Articles 129 and 142 of the Constitution of India.
The Supreme Court had, after taking cognizance of letter dated 18.9.1997 written by Justice U.L. Bhat, the then President of the Customs, Excise and Gold (Control) Appellate Tribunal to the Chief Justice of India pointing out that the respondent had published objectionable editorials in 1996 (86) Excise Law Times pages A169 to A179, 1996 (87) Excise Law Times pages A59 to A70 and 1997 (94) Excise Law Times pages A65 to A82 containing half truths, falsehoods and exaggerated versions of the alleged deficiencies and irregularities in the functioning of the Tribunal, initiated contempt proceedings against the respondent which came to be registered as Contempt Petition (Criminal) No.15 of 1997. On 25.8.1998, the respondent filed an undertaking, the relevant portions of which are reproduced below:
"I realize that my approach and wordings in the Impugned Editorials of ELT have given the impression of scandalising or lowering the authority of CEGAT. I state that I had no such intention as I had undertaken the exercise in good faith and in public interest. I sincerely regret the writing of the said Editorials which have caused such an impression. That I have been advised by my senior counsel - Mr. Shanti Bhushan that in future whenever there are any serious complaints regarding the functioning of CEGAT, the proper course would be to first bring those matters to the notice of the Chief Justice of India, and/or the Ministry of Finance and await a response or corrective action for a reasonable time before taking any other action. I undertake to the court to abide by this advise of my counsel in future."
The respondent had written several detailed letters in the years 2008 and 2009 to the Finance Minister, Government of India, the Revenue Secretary, President, CESTAT, Registrar, CESTAT and the Central Board of Excise and Customs highlighting specific cases of irregularities, malfunctioning and corruption in the Central Excise, Customs and Service Tax Appellate Tribunal (CESTAT), on the appointment and posting of Shri T.K. Jayaraman, Member CESTAT and pointing out that some of the orders pronounced by CESTAT had been changed.
Since no one seems to have taken cognizance of the letters written by the respondent, he wrote the editorial in which he commended the administrative and judicial reforms initiated by the new President of CESTAT and, at the same time, highlighted how some members of CESTAT managed their stay at particular place. He also made a mention of what he perceived as irregularities in the appointment and posting of Shri T.K. Jayaraman, erstwhile Commissioner of Central Excise, Bangalore as member CESTAT. The respondent then referred to some of the orders passed by the Bench comprising Shri T.K. Jayaraman, which were adversely commented upon by the High Courts of Karnataka and Kerala. He also made a mention of the irregularities in the functioning of the Registry of CESTAT.
The petitioner, whose members are said to be appearing before Bangalore, Chennai, Bombay, Delhi, Ahmedabad and Calcutta Benches of CESTAT, took up the cause of Shri T.K. Jayaraman and submitted complaint dated 11.6.2009 to the President of CESTAT accusing the respondent of trying to scandalize the functioning of CESTAT and lower its esteem in the eyes of the public.
By an order dated 16.7.2009, the President, CESTAT appointed a two-member committee to look into the grievance made by the petitioner as also the allegations contained in the editorial.
By letter dated 24.7.2009, the President, CESTAT informed Shri B.V. Kumar, President of the petitioner-Association about appointment of the Inquiry Committee.
Soon thereafter, the Inquiry Committee informed the parties that it would meet at Bangalore on 11.8.2009 but President of the petitioner- Association expressed his inability to attend the meeting and sought re-schedulment for 28/29.8.2009. It appears that members of the petitioner- Association were apprehensive that an inquiry into the truthfulness or otherwise of the contents of the editorial may cause embarrassment to some of them as also some members of CESTAT and, therefore, they decided to adopt a shortcut to silence him. In furtherance of this object, the petitioner sent letters dated 8.8.2009 and 25.8.2009 to the Solicitor General of India and the Attorney General of India respectively seeking their consent for filing contempt petition against the respondent. In neither of those letters, the petitioner made a mention of the Inquiry Committee constituted by the President, CESTAT to look into the complaint made by it. The Attorney General gave his consent vide letter dated 9.9.2009.
Thereafter, this petition was filed.
The petitioner has sought initiation of contempt proceedings against the respondent by asserting that the editorial written by him is in clear violation of the undertaking given to this Court that serious complaint regarding the functioning of the Tribunal will be brought to the notice of the Chief Justice of India, and/or the Ministry of Finance and response or corrective action will be awaited for a reasonable time before taking further action. According to the petitioner, the editorial in question will not only create a sense of fear and inhibition in the minds of the members who are entrusted with the onerous task of dispensing justice, but also prevent the advocates and practitioners who appear before CESTAT from advancing the cause of their clients without any apprehension of bias/favouritism. The petitioner also pleaded that by targeting the particular member of CESTAT, the respondent has scandalized the entire institution.
In the written statement filed by him, the respondent has taken stand that he cannot be accused of violating the undertaking filed in this Court on 25.8.1998 because before writing the editorial he had brought all the facts to the notice of the Finance Minister and the Revenue Secretary, Government of India as also the President, CESTAT and other functionaries, but no one had taken corrective measures. The respondent has claimed that the sole object of writing the editorial was to enable the concerned authorities to streamline the functioning of CESTAT on administrative and judicial side and take other corrective measures. He has referred to the observations made by this Court in R.K. Jain v. Union of India AIR (1993) SC 1769 = 2002-TIOL-405-SC-CONSTITUTION, 162nd Report of the Law Commission on the Review of Functioning of CAT, CEGAT and ITAT and pleaded that he had written the editorial with a spirit of reform and not to scandalize the functioning of CESTAT.
One of the two minor issues is whether by writing the editorial in question, the respondent has committed breach of the undertaking filed in Contempt Petition (Crl.) No.15/1997. The other issue is whether the editorial is intended to scandalize the functioning of CESTAT or the same amounts to interference in the administration of justice and whether the voice of a citizen who genuinely believes that a public body or institution entrusted with task of deciding lis between the parties or their rights is not functioning well or is passing orders contrary to public interest can be muffled by using the weapon of contempt.
The Supreme Court observed, “In our view, the respondent cannot be charged with the allegation of having violated the undertaking filed in this Court on 25.8.1998. The respondent is not a novice in the field . For decades, he has been fearlessly using his pen to highlight malfunctioning of CEGAT and its successor CESTAT. Letter dated 26th December, 1991 written by him to the then Chief Justice of India, M.H. Kania, J. complaining that CEGAT is without a President for last over six months and the functioning of the Tribunal was adversely affected because the Benches would sit hardly for two hours or so and further that there was tendency to adjourn the cases, was ordered to be registered as a petition in public interest.
The respondent was very much conscious of the undertaking filed in the earlier contempt proceedings and this is the reason why before writing the editorial, he sent several communications to the concerned functionaries to bring to their notice serious irregularities in the transfer and posting of members, appointment of members, changes made in the pronounced orders and many unusual orders passed by the particular Bench of CESTAT, which were set aside by the Karnataka and the Kerala High Courts after being subjected to severe criticism. 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. It is neither the pleaded case of the petitioner nor any material has been placed before this Court to show that the Finance Minister or the Revenue Secretary, Government of India had taken any remedial action in the context of the issues raised by the respondent. Therefore, it is not possible to hold the respondent guilty of violating the undertaking given to this Court.”
On Freedom of Speech - contempt: The Supreme Court referred to several decisions and the following are some of the quotable quotes.
Freedom of speech and expression has always been considered as the most cherished right of every human being.
It is a prized privilege to speak one's mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.
In all civilized societies, the Courts have exhibited high degree of tolerance and accepted adverse comments and criticism of their orders/judgments even though, at times, such criticism is totally off the mark and the language used is inappropriate.
++ Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.
++ Silence is not an option when things are ill done.
++ In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one's mind have always been respected.
++ 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.
++ Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression.
++ "I do not agree with a word you say, but I will defend to the death your right to say it ".
++ intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.
++ Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle. But, like other liberties, this also must be limited.
++ Poise and peace and inner harmony are so quintessential to the judicial temper that huff, "haywire" or even humiliation shall not besiege; nor, unveracious provocation, frivolous persiflage nor terminological inexactitude throw into palpitating tantrums the balanced cerebration of the judicial mind.
++ The integral yoga of shanti and neeti is so much the cornerstone of the judicial process that criticism, wild or valid, authentic or anathematic, shall have little purchase over the mentation of the Court.
++ if judges decay, the contempt power will not save them.
++ There has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy.
Was the Editorial in ELT an attempt to scandalize the functioning of CESTAT? The Supreme Court observed that a reading of the editorial in its entirety unmistakably shows that while expressing his appreciation for the steps taken by the new President of CESTAT to cleanse the administration, the respondent had highlighted what he perceived as irregularities in the transfer and postings of some members and appointment of one member. He pointed out that Shri T.K. Jayaraman was accommodated at Bangalore by transferring Shri K.C. Mamgain from Bangalore to Delhi in less than one year of his posting and further that the posting of Shri T.K. Jayaraman for a period of 7 years was against all the norms, more so because he had earlier worked as Commissioner of Central Excise (Appeals), Bangalore. The respondent then made a detailed reference to the orders passed by the particular Bench of CESTAT which were set aside by the High Courts of Karnataka and Kerala with scathing criticism.
Some of the headings used in the Editorial.
++ Pre-deposit of Rs.320 crores waived for deposit of Rs.1 crore - Case heard without being listed
++ Tribunal persistently ignoring statutory provisions and High Court rulings
++ Pre-deposit of Rs.440 crores waived without any financial hardship - High Court rulings again violated
++ Asked for "three" got "thirteen
++ Kerala High Court also dissatisfied with Bangalore Bench Orders
Although, the petitioner has tried to project the editorial as a piece of writing intended to demean CESTAT as an institution and scandalize its functioning but the Supreme Court did not find anything in it which can be described as an attempt to lower the authority of CESTAT or ridicule it in the eyes of the public. Rather the object of the editorial was to highlight the irregularities in the appointment, posting and transfer of the members of CESTAT and instances of the abuse of the quasi judicial powers. What was incorporated in the editorial was nothing except the facts relating to manipulative transfer and posting of some members of CESTAT and substance of the orders passed by the particular Bench of CESTAT, which were set aside by the High Courts of Karnataka and Kerala.
The Supreme Court observed, “Even, this Court was constrained to take cognizance of the unusual order passed by CESTAT of which Shri T.K. Jayaraman was a member whereby the appeal of the assessee was decided on merits even though the Tribunal was required to examine the question of limitation only. By writing the editorial which 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. What the respondent projected was nothing but true state of the functioning of CESTAT on administrative side and to some extent on judicial side. By doing so, he had merely discharged the constitutional duty of a citizen enshrined in Article 51A(h). It is not the petitioner's case that the facts narrated in the editorial regarding transfer and posting of the members of CESTAT are incorrect or that the respondent had highlighted the same with an oblique motive or that the orders passed by Karnataka and Kerala High Courts to which reference has been made in the editorial were reversed by this Court. Therefore, it is not possible to record a finding that by writing the editorial in question, the respondent has tried to scandalize the functioning of CESTAT or made an attempt to interfere with the administration of justice.”
Truth as a defence in Contempt proceedings : The Supreme Court observed, “The substituted Section 13 represents an important legislative recognition of one of the fundamentals of our value system i.e. truth. The amended section enables the Court to permit justification by truth as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bonafide. In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, 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. Since, the petitioner has not even suggested that what has been mentioned in the editorial is incorrect or that the respondent has presented a distorted version of the facts, there is no warrant for discarding the respondent's assertion that whatever he has written is based on true facts and the sole object of writing the editorial was to enable the concerned authorities to take corrective/remedial measures.
The phenomenon of whistleblower : The Court observed, “A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and controlling organization, but a choice of options for individuals, including an option that offers near absolute confidentiality. However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. 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 Supreme Court held that this petition lacks bonafide and is an abuse of the process of the Court and observed, “The petitioner is a body of professionals who represent the cause of their clients before CESTAT and may be other Tribunals and authorities. They are expected to be vigilant and interested in transparent functioning of CESTAT. However, instead of doing that, they have come forward to denounce the editorial and in the process misled the Attorney General of India in giving consent by suppressing the factum of appointment of Inquiry Committee by the President, CESTAT. We are sorry to observe that a professional body like the petitioner has chosen wrong side of the law.”
In the result, the petition is dismissed. For filing a frivolous petition, the petitioner is saddled with cost of Rs.2,00,000/-, of which Rs.1,00,000/- shall be deposited with the Supreme Court Legal Services Committee and Rs.1,00,000/- shall be paid to the respondent.
(Click here for the Editorial that resulted in the Contempt petition + also see 2010-TIOL-64-SC-CONTEMPT)
