The Protocol of vested interests

The hydropower industry's Protocol is an inside job - developed by the industry, to be administered by its consultants, who will work closely with project promoters.

On 16 November 2000, almost exactly ten years ago, Nelson Mandela released the report of the World Commission on Dams (WCD) in London. The WCD, it may be recollected, was a 12-member Commission representing dam builders, engineering companies, NGOs, affected peoples movements etc. set up in 1998 at the initiative of the World Bank and the International Union for Conservation of Nature to assess the development effectiveness of large dams worldwide. Even with the diversity of its members, it delivered a unanimous report, vindicated many of the serious criticisms of large dams, and come out with a set of criteria and guidelines under which large dams should be built. 

The WCD report carries with it the credibility that comes from broad participation, including those whose voices are normally not heard. Ten years later, the WCD's relevance has only grown, a testimony to its farsighted treatment of contentious issues, and to the meticulously assembled knowledge base. 

It is ironic then, that as the WCD has completed ten years, the hydropower industry, brought out its Hydropower Sustainability Assessment Protocol in September 2010. The Protocol has been described as "a sustainability assessment framework for hydropower development and operation." Unlike the WCD report, however, this document has come out of a highly exclusive process. Predictably, therefore, it has serious problems, and it risks undermining and weakening of social and environmental standards for dams and hydropower. 

Moreover, it threatens to sideline the WCD. The International Hydropower Association (IHA) that led the process to develop this Protocol expects "over time this Protocol may inform the evolution of or be adopted as the assessment approach used by governments, banks and other institutions." In other words, replace the WCD as the main framework to assess large dams and hydropower projects. This expectation is not surprising at all. 

The WCD faced strong resistance from several Governments (including India) and the dam building establishment, primarily because its recommendations included an increased role for the marginalised people in decisions related to dams, equal weightage for social and environmental impacts, and called for a more equitable sharing of the benefits and costs. Witness India's response to the WCD report that "... emphasis on equity in a wrong manner is dangerous. Many countries including India and USSR have learnt hard way that too much emphasis on equity can only perpetuate poverty." At the same time, the WCD received wide acceptance, and many elements of the framework - if not its entirety - are becoming part and parcel of the standards to which dams are being held accountable. 

Dam standards are important to protect the environment and communities as dams are built all over the world. But with climate change being used as reason to push dams and hydropower even more, and the Clean Development Mechanism (CDM) and Carbon Trading opening up huge markets for "carbon credits" that can be obtained from hydropower - the standards to which these dams are subjected become crucial financially also. This is because carbon credits are accepted for trading only if they are from "sustainable" projects. Thus, stringent criteria like those set by the WCD could lead to fewer projects qualifying for the money-spinning CDM. 

With NHPC, India's leading state-owned hydropower company on the Board of IHA, several other Indian hydropower developers as members, and one of the test trials of the Protocol being carried out on NHPC's Teesta V project, it is likely that the Protocol will be pushed in India as an indicator of sustainability. All the more reason, then, to understand the problems and limitations of the IHA's Protocol and reiterate the importance of the WCD framework. 

The 'Protocol' of vested interests

The Protocol is essentially a score sheet - project scores ranging from 1 to 5 are given for a number of different elements of sustainability. Assessments are made for four phases of any project - Early Stage, Preparation, Implementation and Operation - and scoring is done for all but the first stage. There are a total of 62 topics for scoring in sections 2-4; these include Governance, Economic Viability, Project Affected Communities and Livelihoods, Environmental and Social Management, Cultural Heritage, Labour and Working Conditions, and so on. A score of 3 for any topic is equivalent to "basic good practice" and a score of 5 is awarded for a "proven best practice". 

The Protocol does not claim to be a standard, saying "Organisations may hold different views on what levels of performance are linked to a sustainable project, and the Protocol makes no specification on requirements for acceptable performance." In other words, projects performing differently on the same topic may have the same score. This, however, will allow projects to conform to weaker or lower standards and still present the image of being "sustainable". 

Notwithstanding this disclaimer, the Protocol does say that it is designed so that a level 3 score, of good practice, is "broadly consistent with the IHA (International Hydropower Association) Sustainability Guidelines 2004". These Guidelines were brought out by the IHA in 2004 to "to promote greater consideration of environmental, social and economic aspects in the sustainability assessment of new hydro projects and the management and operation of existing power schemes" and do constitute a benchmark of sorts even if not full-fledged standards. 

Not only are these guidelines considerably weaker than those in the WCD recommendations, this also means that the Protocol is essentially designed to assess projects against a standard developed by the Hydropower industry itself - which clearly has a vested interest in the standards being less stringent. 

For example, the WCD requires a basin-wide understanding of the ecosystems and how communities depend on and influence them, "before decisions on development options are made." In other words, a basin-wide comprehensive study is a prerequisite for assessing individual projects. The Sustainability guidelines of the IHA, on the other hand, take a policy position that "Environmental Assessments (EAs) should be applied at the project level." These EAs are only required to "take account of higher level regional or national ... assessments ... including assessments already completed for the relevant river basin(s)." Thus, a river basin level assessment is not mandatory but needs to be considered only if it is already done. 

 Not only are the Protocol's guidelines considerably weaker than those in the WCD recommendations, this also means that the Protocol is essentially designed to assess projects against a standard developed by the Hydropower industry itself - which clearly has a vested interest in the standards being less stringent. 

This Protocol has also been developing in an exclusive manner. While the Forum put together by the IHA to build this Protocol included some civil society organisations, these have been the large International NGOs like WWF and Oxfam, and there has been no involvement of dam-affected people, dam critics and other southern dams-related struggles and movements. These groups were invited much later in the process to provide some inputs, but these consultations were too little, too late and too limited. In any case, movements of dam-affected people have argued for seats at decision-making tables, not merely being "consulted" - which is more often than not a process by which people are heard and then ignored. 

The implementation of the Protocol will be controlled by the IHA. Only those who are licensed by the IHA can assess a project. Further, it is expected that the assessment will actually be carried out by the assessor working closely with a representative of the project. This representative, called the Lead Project Representative, will be the main point of coordination for the assessment and will arrange, among other things, the agenda and the interview schedules for the assessor, provision of an interpreter etc. Clearly, such an arrangement is hardly likely to result in a truly independent assessment of the project, or provide space to critical voices. 

Given all this, it is clear that the Protocol is a tool developed by the industry, by excluding the people affected by such projects, to be administered by consultants who will be licensed by the industry body and often paid for by the project, and who will conduct the assessment in close coordination with the project promoters! Further, the Protocol allows a project to get high scores and create an impression of sustainability, even if complies with standards weaker than the WCD, or those adopted by many internationally agencies. 

This document can at best be useful for some of IHA's internal workings. However, as a credible, publicly accountable means of measuring and ensuring sustainability - and that includes justice, equity and human rights - it is totally inappropriate. The WCD remains the only comprehensive framework that has emerged from a widely participatory process, with the voices of the affected people having a meaningful say. It is important that instead of such limited tools like the Protocol, the WCD framework should be adopted as the central approach to define just, sustainable, equitable planning, decision-making and implementation of dams and other water resource projects. 
 

Whose Prime Minister?

For Manmohan Singh, the tortuous road to the high office he occupies may be both fortuitous and a handicap. He is not the Prime Minister by right or popular mandate, but simply the man deemed most suited to occupy that role in the midst of the most notable political currents.

Does it matter that Dr.Manmohan Singh was not affirmed as Prime Minister by the popular vote of the nation, but merely selected to that post by a coalition of parties following the election? Does it matter, further, that he is not even a member of the Lok Sabha, and - as a result - has not acquired the popular vote of any constituency? 

A free people deserve to be represented by someone whose leadership was on offer at the time their choices were made. Perhaps for this reason, those appointed to high office without public affirmation at the polls are sometimes required - by tradition, even if not by law - to obtain the electoral seal. In Dr.Singh's case the impropriety is worsened by another problem: even his status as a Rajya Sabha member from Assam is plainly questionable. To the knowledge of nearly everyone, he is not ordinarily resident in that state, as is claimed. By any non-partisan assessment of this situation, therefore, one would have to conclude that his ascent is far short of the democratic ideal. 

Nonetheless, the parliamentary and electoral system in our nation allows this to happen. Moreover, this situation has become more an accepted one in our polity and less a debated one. India could reform her electoral system to allow the head of the executive to be directly elected in the manner that Indonesia has transitioned to recently, but that change seems far too distant, given that an amendment to force Ministers to seek popular mandate with a Lok Sabha seat itself is not on the cards. 

Nor is it possible to overlook the reality of Indian politics today. Although Sonia Gandhi is the popular leader of the largest parliamentary party, she is clearly unacceptable to large sections of the population in the role of the Prime Minister. Her embrace of Indian-ness and assumption of political leadership of the Congress have not been ideal. At the same time, during her stewardship, the Congress has fared reasonably well in State-level politics, and possibly arrested its long decline at the national level. If those are the start of recovery for the Congress, then one may even conclude that her willingness to stand aside from the PM's post avoided considerable bitterness in Parliament, and exhibited considerable statesmanship. 

These nuances, however, were perfectly clear at all times. The Congress did not discover after the election that its leader would be unacceptable to some; it merely gambled that such opposition could be overcome, and lost that bet. The fallback option - appointing an acceptable and amenable loyalist - was probably considered all along, even if not publicly, by partners and opponents alike, and perhaps even understood by many of the voters. This could explain why the choice of Manmohan Singh simply seemed to confirm the inevitable, with the Congress simply being the last to recognize that. 

 His appointment is a deal between kingmakers. But whatever the demerits of that history, he is also the Prime Minister, with the attendant power and authority it brings. History - even New Delhi's own history - is replete with the stories of stand-ins who grew to their own strengths. 

Dr.Singh may be older than most who have made that transition, but it is nonetheless possible that in time, he will acquire the political stature befitting that appointment. If he does a fine job, could he - in the process of that accomplishment - sweep aside these considerations that now appear to reign him in? Certainly, that is possible. For now, though, he has only the managerial substitute to the standing that might arise from better outcomes. 

Which returns us to the question - does it matter?

Some would assert that having started with one toe stretching beyond the ideal starting line, the PM shoulders greater expectations than those a routinely elected Prime Minister would have to. If Dr. Singh performs substantially better than average, justified criticism of his appointment may be partially overcome. Others will argue that Dr.Singh's performance cannot be a proxy to seal criticism on how he may have risen to his post. Of course, the burden itself could be lightened greatly by contesting - and securing victory in - a Lok Sabha by-election, but that route appears closed for now. 

The situation is complex either way. If Manmohan Singh steers the nation towards greatness, that might indicate the normal electoral situation is not really designed to produce praiseworthy leaders, and it is only by such extra-parliamentary maneouvers that we are able to find good leadership. If, on the other hand, he fails to deliver substantially better government than the political class has so far, then pundits will quickly point out that he was 'selected' not elected. But having mounted the horse, Dr.Singh no doubt finds that it is now his to ride. 

Thus far, criticism has been limited to the mechanics of his assumption of office. But now, that die is cast, and questions of performance will take centre-stage. As the winter session of Parliament - the first one for which he has had a meaningful amount of time to prepare - looms, the Prime Minister must begin to demonstrate that the answers favour him.

Wake up New Delhi

In Kashmir, it seems the only person the Centre is listening to is Omar Abdullah, the man against whom the entire population, including his own party, his bureaucracy, and his police is up in arms.

What the ISI-trained terrorists and their agents in Kashmir could not achieve in 20 years, Omar Abdullah and his patrons in Delhi Durbar have managed to deliver to separatists in less than 18 months. Farooq Abdullah is well within his right as the father of the present Chief Minister of J&K to advise his son not to resign despite the worsening situation in Kashmir. But by telling Omar to keep clinging to his chair even when he has earned universal wrath in Kashmir all because he has still not yet lost favour with the Congress Party High Command is to openly declare that he owes his position to the Delhi Durbar.

This when one of the key complaints of Kashmiris is that the Central Government has a habit of planting chief ministers in Kashmir who will let the Centre rule J&K by proxy even if it means depriving Kashmiris of the democratic rights available to people in most other parts of India to elect or cast away those who fail them as their political representatives. 

Similarly, the Prime Minister's condescending offer of "dialogue" with all those who are willing to "shun violence" only adds insult to injury. Firstly, the PM is not doing anybody a favour by offering dialogue.

At the moment, those who are pelting stones defying curfews and shoot-at-sight orders are in no mood of dialogue. The moderates among Hurriyat who had earlier risked their lives by coming for dialogues to New Delhi were abandoned mid-way because of the Congress leadership's smugness on account of high turnout in the elections. The pro-Pakistan hardliners have spurned the PM's offer for talks because this regime's policies have brought them centre-stage. In fact, they have used the popular upsurge against the continuing violation of human rights to lay their own pre-conditions for dialogue - demanding the repeal of Armed Forces Special Powers Act and withdrawal of security forces from the Valley.

Had the Centre demilitarised Kashmir in good time, it would have earned universal goodwill in Kashmir. But today, the Congress High Command has caused severe erosion of its moral and political authority and the vaccum created by the marginalisation of democratic processes has been filled by the sepratists. 

Today, the situation is far worse than in the 1990's. At that time people feared death at the hands of militants. Therefore, they did not dare defy their diktats. But today, the stone pelting young kids are so enraged at the current regime, both in Srinagar and in Delhi that they have turned nihilistic and are afraid of no one - neither the guns of terrorists nor that of security forces. Many among the state policemen have procured fake identity cards and avoid wearing their uniform when commuting from their homes for duty lest they be lynched by angry mobs.  

 The only people not attacking Omar Abdullah are pro-Pakistani elements who are delighted that he has provided them such a fertile ground for their secessionist agenda at a time when even Pakistan had lost hope of making it work. (Above: A soldier stands guard outside Srinagar airport. Picture source - Wikipedia Commons). 

The curious love-hate relationship between the National Conference and the Congress Party at the Centre has resulted in consistent mishandling of the Kashmir situation from 1947 onwards, when the NC assumed power after Sheikh Abdullah made a pact with the Congress Party at the Centre. Despite being a much loved and popular leader, Sheikh Abdullah was an out and out autocrat. Even when it was 100 per cent certain that he would sweep the poles, the Abdullah patriarch organised brazen rigging of elections and hounded all opponents out of the electoral fray. 

The romance of Kashmiri Muslims with the Lion of Kashmir would have died in no time if it were not for the blunder Nehru committed by putting Abdullah in jail and later under house arrest for 11 long years. That put a veil of martyrdom over his autocratic rule. He was reinstalled as arbitrarily as he was dismissed. This earned the Congress Party and the Central government the image of a despised imperial power.

His son Farooq carried forward the family tradition of rigging elections with open connivance of the Central Government if he showed willingness to be a pliable instrument. His regime was also notorious for corruption and mismanagement. At the end of his tenure Farooq was so unpopular that people actually dug up the grave of Sheikh Abdullah to vent their anger against the dismal governance record of the National Conference. But instead of letting him face the ire of his own people in the electoral arena, Farooq too was provided the halo of martyrdom by New Delhi's repeated imposition of Governor's rule after arbitrary dismissals of the NC government, and the equally arbitrary reinstatement of Farooq as CM after he signed the Rajeev-Farooq Accord in 1986. It convinced Kashmiris that New Delhi will only allow puppet chief ministers in J&K. 

The brazen rigging of the 1987 elections by NC with the active connivance of the Congress Party at the Centre - with a view to deny the Muslim United Front the opportunity to wrest a dozen odd seats in the legislative assembly - led to a massive upsurge against Farooq's government and inevitable alienation from Indian democracy. This is what prepared a ripe ground for Pakistan to foment trouble and inject terrorist politics into the Valley. 

Initially, Omar Abdullah gave the impression that he had learned from his father's mistakes. However, he also saddled himself with many liabilities when he assumed power after the 2008 elections. Today, even senior bureaucrats, police and Army officers admit that the National Conference won the 2008 elections by selctive rigging and 'management of polling booths', especially in Srinagar city from where National Conference won 8 seats. The capital city witnessed the most blatant booth-capturing and consequently the lowest voter turnout in the Valley of about 2 to 6 per cent - this at a time when the average voter turnout in the Valley was 60 to 69 per cent. This cast a shadow on the legitimacy of the NC government as well as on the credibility of the elections. 

To top it all, Omar took over as CM after staging a brazen coup against his own father, by using Rahul Gandhi's clout to claim the throne. This, after his father had let the whole world know that he was going to be CM. Proximity to Rahul Gandhi may give Omar political clout in Delhi Durbar and a lot of favourable media coverage in the national press, but in Kashmir it stigmatised him as a puppet of the Congress High Command. It does not help matters that Omar is seen more often in Delhi than in Srinagar. 

Lacking a popular base in the Valley, the new Chief Minister handpicked a few cronies, including some of his unsavoury business partners who lord over a very corrupt and callous administration. Omar also estranged the entire old guard of the NC by his arrogant systematic sidelining of all senior leaders, especially those who had some political roots in the Valley. Not surprisingly, NC stalwarts have been completely inactive during this crisis and NC cadres are playing a leading role among stone pelters. The current joke is that when addressing the media, Omar's main audience is 10 Janpath, the Home Ministry and the South Delhi cocktail circuit - the three forces he imagines are the shakers and makers of India. 

It took 20 years for Kashmir to recover from the backlash against the Rajiv-Farooq accord. However, at that time only a handful picked up the gun. The Omar-Rahul accord has proved far more deadly. The revolt against this regime so universal that no one, not even NC stalwarts, dare stand up in public to defend it in Kashmir. As far as Kashmir is concerned, starting from Nehru, the Congress Party has perfected the art of wresting defeat from the jaws of victory. 

Public disapproval of state governments is not uncommon - we regularly witness state governments being voted out by people fed up with their rulers. However, it is only in Kashmir that we find the upsurge against the local regime turning into an anti-India upsurge because of New Delhi's penchant for propping up pliable CMs and endorsing their use of central security forces to deal even with democratic protests.

Is 'contempt of court' blocking justice?

It is impermissible under the law to 'scandalise the courts'. But is this vague restraint contrary to the guarantees of liberty given to citizens in the Constitution?

The law relating to contempt of courts is once again in focus. Supreme Court lawyer Prashant Bhushan is facing contempt proceedings in the apex court for making allegations of corruption against some Supreme Court judges in an interview in September 2009. Tarun Tejpal, Managing Editor of Tehelka is also facing charges for publishing this interview. In a recent development, former Union Law Minister Shanti Bhushan - Prashant's father - has also attempted to implead himself in the case by repeating the same allegations. 

The law in question, The Contempt of Courts Act, 1971 defines 'contempt', allows for a summary trial, and prescribes the maximum punishment for those found guilty - imprisonment up to six months together with a fine. Disobeying court orders, interfering with judicial proceedings, or obstructing the administration of justice all amount to contempt of court. If those three are fairly easy to understand, there is a fourth provision which leaves great room for discretion - scandalising or lowering the authority of the court - and this has been the problem provision in many cases. 

Courts need the power to see that their directives are implemented, that the functioning of the courts is not disrupted, that parties in a trial are not threatened, that witnesses or court officials are not offered inducements and so on; in short, the power is needed to ensure that the judicial process works. This is an objective of the law of contempt. However, Dr Rajeev Dhavan, an eminent lawyer who has written extensively on contempt and the press explains, "(t)he overall purpose of the law of contempt is not just to make the judicial process work, but to protect, sustain and enhance the majesty of courts and the justice system." The contempt of 'scandalising the court', it seems, has much to do with this purpose. 

Pre-independence law

The Act of 1971 does not clarify what constitutes scandalising the court. Its predecessors, the Act of 1952 and the Act of 1926, did not even define contempt. However, courts in colonial India had adopted the idea of contempt even earlier from English common law and assumed powers for punishing it,  following the precedent of English courts. A couple of examples will illustrate the sensitivity of the colonial courts to any public criticism of judges and the judiciary. 

The Bengalee published an article in 1883 after the conclusion of a case criticising the zabardasti (high handedness) of a judge of the Calcutta High Court in ordering a sacred Hindu Saligram to be physically produced in court. The court found the article to be contemptuous and defamatory of the judge, and sentenced the editor of the newspaper, Surendra Nath Banerjee, to prison. 

The Amrit Bazar Patrika reported a speech made in 1935 in the Legislative Council, which contained some general criticism of the judges of the Calcutta High Court. The following extract from the report came in for scrutiny by the Court:

"We are glad to find that in the Bengal Legislative Council yesterday there was a discussion about administration of the Calcutta High Court. Every word of Mr. N.K. Basu was true. It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence, which at one time attracted the admiration of the whole country. The old order of things has vanished away. We wish the Chief Justice and the Judges appreciate the sentiments of the public. The generation that has gone by should be an ideal to them." 

While the Court could not take any action on the proceedings in the legislative council, it determined that the article in the Amrit Bazar Patrika was capable of "great public mischief" and sentenced the editor to prison for contempt of court. 

The promise of the Constitution

Article 19 of the Constitution of India guaranteed the right to freedom of speech and expression, but also allowed restrictions on this right to be imposed by law, including any Law of Contempt, provided only that the restrictions were reasonable. Articles 129 and 215 of the Constitution explicitly spelt out the power of the Supreme Court and High Courts to punish someone for contempt. 

The law, when it was ready - The Contempt of Courts Act, 1952 that replaced the Act of 1926 - did not define 'contempt'. This omission on the part of the legislature was apparently deliberate, and designed to maintain the elastic character of the law, to enable its application over a wide field by the courts. Clearly, the immediate concern of the legislature of that period was to preserve continuity in the powers of the judiciary. 

An interesting contempt prosecution from this period is that of the Telugu weekly, Praja Rajyam, published at Nellore, for an article it carried under the caption: "Is the Sub-Magistrate, Kovvur, corrupt?" The article stated that the person in question was known in the locality as a bribe taker, cited instances where he had either taken bribes or put parties to undue harassment and concluded with the appeal: "Will the Collector enquire into the matter and allay the public of their fears?" 

The Publisher and Managing Editor of the weekly appealed to the Supreme Court against a Madras High Court judgment finding him guilty of contempt. Dismissing the appeal (heard in 1952), a Constitution bench of the Supreme Court explained why the editor was indeed guilty of contempt: 

The Government acknowledged, under pressure of public opinion, that the law of contempt is "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens. 

The article in question is a scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.  

The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein. He admitted that the statement was based on hearsay. Rumours may have reached him from various sources, but before he published the article, it was incumbent upon him as a reasonable man to attempt to verify the information he received and ascertain, as far as he could whether the facts were true or mere concocted lies. He does not appear to have made any endeavor in this direction. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bonafide, even if good faith can be held to be a defense at all in a proceeding for contempt.

The judgment identified the issues that were important in the defense against contempt of scandalizing the court - 'public interest', 'truth', and 'good faith'. 

It took a decade for the Government to acknowledge, under pressure of public opinion, that the law of contempt was "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens - the right to personal liberty and the right to freedom of expression. The Sanyal Committee was set up in 1961 to examine the law and suggest reforms. It took another decade for the recommendations of this committee to be implemented in the Contempt of Courts Act, 1971. 

The Act of 1971 offered some guidelines for reporting and comment on judicial proceedings that would not attract contempt charges. For example, "fair and accurate report of a judicial proceeding" and "fair comment on the merits of any case which has been heard and finally decided" would not be contempt. The Act also provided that contempt would not be punishable unless it "substantially interferes, or tends substantially to interfere with the due course of justice". Notwithstanding these improvements, the definitions of contempt did not do away with the uncertainty. 'Scandalising the Court' was contempt, but what constituted 'scandalising the Court'? 

Justice Krishna Iyer captured the problems inherent in the contempt law, in a 1974 judgment, in these colourful phrases: "A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties ..." 

These problems, he argued, imposed a special responsibility on the higher judiciary to be vigilant and protect free speech "even against judicial umbrage". The subsequent judgment of Justice Krishna Iyer in the Mulgaonkar case in 1978 (where contempt charges against the Indian Express were withdrawn) has been seen as the beginning of a liberal trend in the treatment of contempt by scandalizing the court. However, this is not the only or even dominant trend. 

"Truth" as defense

The most recent attempts to reform the contempt law started with the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 to allow 'truth' as defense in matters of Contempt of Court. While making this recommendation, the Commission observed:

"Judicial decisions have been interpreted to mean that with the law as it now stands, even truth cannot be pleaded as a defense to a charge of contempt of court. This is not a satisfactory state of law. It would, indeed be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of Satyameva Jayate, in the High Courts and Yatho dharma statho jaya in the Supreme Court, the courts could rule out the defence of justification by truth." 

The NCRCW recommendation was not particularly revolutionary. In the UK and Australia, truth as defense to a charge of contempt by scandalising had been available for several decades. The recommendation eventually resulted in a bill to amend the law related to contempt. 

The Parliamentary Standing Committee on Personal, Public grievances, Law and Justice (Standing Committee) examined the Contempt of Courts (Amendment) Bill, 2004 and provided several interesting insights in its report. The Government had proposed to amend the 1971 Act by adding the clause: "The Court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defense is bona fide". However, the Standing Committee felt that the requirement that the 'truth' used as justification should be in public interest was an additional burden imposed on a person accused of contempt and would "virtually defeat the objective of the proposed legislation"; therefore, it recommended that the term 'in public interest' be deleted. 

The law today

The Government however did not accept this demand and the contempt law was amended in 2006 in line with the above proposal. In the law as it now stands, while a person accused of contempt can seek his defense in "truth", he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide, that is, with reasonable care and caution. 

Other countries have progressed to a more liberal regime. In UK, prosecuting a person for contempt for scandalising the court is considered virtually obsolescent and the Courts have rarely used this power for several decades. In the US, the offense of scandalizing the court is unknown and US Courts initiate action for contempt only when they determine that there is 'clear and present danger' to the administration of justice. 

In our country, it is still too early to assess the impact of the recent changes in the law. However, what is clear is that only the judiciary, of its own accord, can make the move towards a more liberal interpretation of contempt that allows healthy criticism that can aid its own development as an institution.