[Reader-list] Arundhati Roy sent to prison today

[Ranita Chatterjee]

Dear All,

A few relevant points that we all might take note of ...by Arundhati Roy's 
lawyer.... 


COURTS, CONTEMPT & A CLIMATE THAT DEMANDS ACCOUNTABILITY
Prashant Bhushan

In the Constitution of India the Supreme Court and the High Courts were seen 
as watchdog bodies, independent of the executive, and entrusted with the task 
of seeing that all institutions function in accordance with the Constitution, 
and the Rule of Law. They were assigned with powers not only to declare and 
set aside Executive acts of Government, but also to strike down (even declare 
unconstitutional) laws made by Parliament and the State Legislatures.

Over the years, the judiciary has expanded its own powers by creative 
interpretations of the Constitution, particularly Article 21 which guarantees 
the right to life. This has been interpreted by the Supreme Court to include 
the right to a healthy environment, to health, primary education, livelihood 
and shelter. Thus the Supreme Court has ordered the removal of ‘polluting’ 
industries from Delhi, the total removal of industries from the vicinity of 
the Taj Mahal in Agra, the change of all commercial vehicles to CNG fuel, and 
the stoppage of all commercial activities in forest areas. All of these 
orders have had far reaching effects, and have drastically affected the lives 
and livelihoods of millions of common persons.

In recent years, and especially after the implementation of the Structural 
Adjustment programme (the so called Economic Reforms programme), the 
jurisdiction of the Superior Courts has also been invoked to challenge the 
Constitutional validity of some elements of this programme. This includes: 
the Enron Case, which challenged the manner in which a privatized contract 
was awarded 
the Telecom case, which challenged the manner in which privatized telecom 
contracts were awarded 
the Balco case, which challenged the manner in which a government company was 
disinvested 
the Panna Mukta oilfields case, which challenged the manner of selling and 
privatizing oilfields owned by the Public sector 

It is another matter that in none of these cases did the court interfere in 
the governments decisions. Indeed, in some of these cases, such as the Balco 
and the Telecom cases, the courts decisions were in fact used by the 
executive to legitimize and promote its policies and programmes, already 
under attack by various public campaigns and mass movements.
Indeed the courts have often been seen to go beyond the issue brought before 
it, and have used the occasion to put their seal of approval on the 
programmes and policies of the government. This is what happened in the Balco 
disinvestment case where the Court went on to approve and applaud the entire 
disinvestment policy of the government, and in the Sardar Sarovar Case where 
the court went on to extol the virtues of large dams, even in the absence of 
this issue being before it.

Constitutionally endowed with enormous powers, the clout of the Indian 
Courts, has increased even further – they are in fact widely regarded as the 
most powerful courts in the world. Despite this, the Courts in India are 
virtually unaccountable. In assuring their independence from the executive, 
impeachment was made the only method of accountability for judges in the 
Constitution. This has proved to be illusory as was demonstrated so starkly 
in the V. Ramaswami case. At the same time, the Courts and judges have been 
reluctant to evolve even an in-house system of self-monitored accountability. 
The result is a situation where they have enormous power without any 
accountability – a situation tailor-made for breeding sloth, arrogance and 
abuse of power.

It is against this background that one has to examine the right - indeed the 
need - for free discussion and criticism of the role being played by the 
courts in this country. In a democracy like ours where every institution is 
exercising power on behalf of the people, are the people not entitled to 
scrutinize, discuss and comment upon the actions of the judiciary? Obviously 
every institution, including the judiciary can go wrong. Every institution, 
including the judiciary has its share of black sheep and corrupt judges. Even 
the Chief Justice of India said so recently in Kerala.

The judiciary is peopled by judges who are human, and being human, they are 
occasionally motivated by considerations other than an objective view of law 
and justice. It would be foolhardy to contend that none of them, at least 
some times, are motivated by considerations of their own personal ideology, 
affiliations, predilections, biases, and indeed even by nepotistic and 
corrupt considerations. In this day and age of common and frequent social 
interaction between politicians and judges, instances of judges being ‘spoken 
to’ on matters pending before them in court are also not unheard of.

In stifling all criticism by the threatened exercise of the power of 
contempt, the issue in a democratic society is ultimately one of the 
accountability of the judiciary itself. In order to stifle free speech and 
comments on the Courts, even an occasional exercise of this power is enough 
to deter most persons from saying anything that might annoy their Lordships. 
Perhaps the most important reason for lack of reforms in the judiciary is the 
reluctance of the Press to write about and discuss the state of affairs 
within it for fear of contempt.

It is for this reason that Arundhati Roy’s case is a test case in which the 
right of a citizen to criticize the Courts and discuss its motivations is 
pitted against the power of the Courts to punish for contempt. The decision 
in this case and the response of the people and the press to the decision 
will be a decisive moment in this struggle.




On Wednesday 06 March 2002 04:25 pm, Shuddhabrata Sengupta wrote:
> Dear All,
>
> (apologies for cross posting to those on both Nettime and the Reader List)
>
> Contempt and Magnanimity - Preliminary Observations on the Conviction of
> Arundhati Roy
>
> This morning the Supreme Court of India sentanced Arundhati Roy to symbolic
> imprisonment for one day and also asked her to pay a fine, for the offense
> of criminal contempt of the Supreme Court of India.
>
> While delivering the judgement, the bench, comrising of Justice G B
> Pattanaik and Justice R P Sethi said "Arundhati Roy is found to have
> committed criminal contempt of court by scandalising and lowering its
> dignity through her statements made in her affidavit"
>
> Justice Sethi, writing the judgement for the Bench, said "the court is
> magnanimous and hoped that better sense would prevail on Roy to serve the
> cause of art and literatrue, from which path she has wavered by making
> these statements against the dignity of the court"
>
> Perhaps the path of art and literature that Justice Sethi recommends is one
> that leads to stage managed literary festivals in medieval fortresses in
> which geriatric mediocrities hang out their pet Nobel peeves to dry. Truly
> a case of the "Writers must write, but they must write this much and no
> more" syndrome, that afflicts, the state, a glassy eyed media circus, and
> the chattering classes who want their books signed by writers and want them
> to toe the line while they sign . The Indian state is a past master at
> masquerading as a cultural octopus, simultaneously cajoling, seducing and
> pampering writers and cultural practitioners with many tentacles even as it
> imprisons others with one of its arms - an overblown and arrogant judicial
> apparatus.
>
> Arundhati Roy was whisked straight from the court to the womens prison at
> Tihar Central Jail, Delhi, without an opportunity to meet the press or
> members of the public, activists of the Narmada Bachao Andolan and others
> who had assembled outside the court premises. I was present in the court
> and saw a cordon of police constables and officers take Arundhati down the
> corridors and steps of the court and into the waiting police vehicle.
>
> Incidentally, this is the first and only hearing of the case in which
> members of the public, and friends and well wishers of Arundhati Roy have
> been permitted to attend. Uptil now, the proceedings, for want of a better
> word, have been virtually "in camera".
>
> In a statement read out on Arundhati Roy's behalf by Prashant Bhushan,
> advocate of the Supreme Court, she (Roy) asserted that she "continued to
> stand by what she had said earlier in her affidavit, and that the dignity
> of the court lay in the quality of the judgements that it delivered."
>
> This verdict represents an important setback for free speech in India.
> While it is debatable as to whether the 'magnanimity' of the court in
> delivering a 'symbolic' judgement of one days imprisonment, 'because she is
> a woman' is anything short of  plainly patronising, the verdict, by the
> severity with which it characterizes the task of drawing connections
> between several decisions of the supreme court (which is what Roy had done
> in her affidavit) as a criminal offense, underscores that we are not living
> in a free society.
>
> What is the path of art and literature from which the court, the highest
> judicial authority in India, asks Roy not to waver from? The verdict is not
> a warning to Roy alone. In effect it represents a clear signal to all those
> who write, report, create works with images, sounds, data and text, that
> some things will not be tolerated in India. Clearly, drawing attention to
> the class interests represented by the state and its institutions, such as
> the judiciary is a criminal offense. In delivering this verdict, the court
> has only exposed the specific class character of the institutions of
> governance and the judiciary. This clarifies a great deal of issues. It
> will no longer do to suffer under the illusion that there is such a thing
> as natural, objective justice that prevails in this Republic, and those who
> actively engage in struggles for justice must now re-consider the paths
> that they must take. Some of these paths will clearly have to stray from
> the straight and narrow of constitutional propriety and the miasma of
> republican
> jurisprudence. If anyone should choose not to see the courts  any longer as
> the sources of remedy in instances of gross injustice, they will be
> justified in their convictions. The whole language of activism is open to
> re-negotiation and creative renewal.
>
> However, there are definitely unfortunate immediate aspects to the
> judgement and its consequences. Tomorrow, if a person, who is not as well
> known as Arundhati Roy is critical of the complete lack of accountability
> of the Supreme Court, they had better be prepared for half a year in
> prison. Needless to say this path is one down which one walks at the risk
> of imposing the severest form of self censorship. It is a path that
> represents the shortest distance between repression and silence, sanctified
> by the authority of the supreme court. Roy had done what writers should do
> more often in any society, which is to point out the equations that
> underwrite the arithmetic of power and powerlessenes, which determine how
> many millions can be displaced at the whim of the state and corporate
> interests, and who can profit from their displacement, and also who can say
> what, to whom, and when abotu the consequences of this displacement. If the
> supreme court in its wisdom chooses to attend to the criminalisation of
> free speech, even as it delivers judgements that wreak havoc and bring
> violence to the lives of millions of ordinary people in this country, then
> clearly we must understand that the court and the custodians of law and
> order have a great deal to fear from free speech in India. It requires
> nothing other than common sense, and the ability to say that "two plus two
> make four" to see that there is a pattern in the judgements. That there is
> a relationship between the muzzling of free speech, and the sanctioning of
> the raising of the height of the narmada dam. The enemies of free speech
> are clearly those who have a great deal to profit from the displacement of
> human beings. This is all that Arundhati Roy has done.
>
>
> Interestingly, the "truth" of a statement made by any person in a case of
> criminal contempt of court is not an 'adequate defence' in law. Which
> means, that it matters little as to whether or not it can be demonstrated
> that the 'motives' which Roy has imputed against the court can stand the
> test of truth. They are criminal, even if, and perhaps, especially if, they
> are true.
>
> In the days to come, as conflicts sharpen, as the nakedness of the violence
> of the powerful becomes all the more transparent, there will be more
> verdicts, more real and symbolic punishments, and more opportunities for
> the powerful to prove how magnanimous they are in their punitive actions.
>
> Clearly there needs to be a public campaign to expose all the dangers to
> free speech in India. We could do, for starters with a campaign to change
> the repressive measures of the law pertaining to criminal contempt. We
> could also do with a vigourous public and open debate about censorship,
> lack of transparency, free speech and the politics of information and
> expression. The veridct on Arundhati Roy must not be seen in isolation from
> a general climate of increased repression, of stringent laws like the IT
> act and the Convergence Bill, and the Prevention of Terrorism Ordinance,
> all of which mandate a situation of 'undeclared' emergency and pervasive
> censorship by a paranoid state that seems to have a great deal to fear from
> a free and open cultural climate in India.
>
> This morning, standing in the corridors of the Supreme Court, waiting for
> Roy to come out of the registrars office, after she had been sentanced, I
> could find nothing else but this contempt when I looked for a reasonable,
> human response to this petty courtroom drama, this little vendetta of
> censorship over free speech, that was played out in the chambers of the
> highest courts of the land.
>
> I realised that contempt is the only reasonable response one can make to
> the magnanimity of power.
>
>
>
>
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