[Reader-list] Contempt of the Supreme Court: Evaluating Arundhati Roy's Case

Sat Apr 24 13:51:40 IST 2004

DEFINING THE CORRECT PATH OF ART AND LITERATURE: THE SUPREME COURT IN ARUNDHATI ROY'S CASE

-Promod Nair [1]

The Narmada Bachao Andolan case,[2] a high- profile case with a rather tame judicial ending saw a number of instances of alleged acts of contempt of court being brought to the notice of the Apex Court. The first Petition in this regard was filed by the State of Gujarat bringing to the notice of the Court the allegedly intemperate reaction (by threat of protests, public meetings and of undertaking satyagrahas) of the Narmada Bachao Andolan to the interim orders of the Supreme Court permitting the construction of the dam up to a height to RL 85 metres.[3] The Court's attention was drawn to the article in the weekly news magazine, Outlook under the heading "The Greater Common Good" by Arundhati Roy and a book by the same title written by the author.

On 22.7.1999, the Court made the following order:

"We have gone through the statements, the press releases, the article and the certain portions of the book referred to above. Prima facie, it appears to us that there is a deliberate attempt to undermine the dignity of the court and to influence the course of justice. These writings, which present a rather one- sided and distorted picture have appeared in spite of our earlier directions restraining the parties from going to the Press etc during the pendency of the proceedings in this Court."

The court took offence to the breach of the sub judice rule by members of the NBA and stated that the NBA and its leader. Medha Patkar knowingly made comments on pending proceedings and prima facie disobeyed the interim injunctions issued by the Supreme Court on 11.4.1997 and 5.11.1998 and that these statements appeared to be an attempt to prejudice or interfere with the due course of judicial proceedings. Chief Justice Anand, speaking for the majority (for himself and B.N. Kirpal, J.) stated that 

"(l)itigants must realise that courts cannot be forced by pressure tactics to decide pending cases in the manner in which the party concerned desires. It will be a negation of the rule of law if the courts were to act under such pressure.

The Court then extracted what it considered to be objectionable passages in the book The Greater Common Good[4] by Roy,[5] and these it considered to be a comment on matters connected with the case. The Court stated that the comments made by Roy were, prima facie, a misrepresentation of the proceedings before the Supreme Court and declared that: 

"(j)udicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner in which it has been done by her."

The Court then advanced reasons as to why the comments made by Roy amounted to contempt of court:

"6.        While hypersensitivity and peevishness have no place in judicial proceedings- vicious stultification and vulgar debunking cannot be permitted to pollute the stream of justice. Indeed, under our Constitution there are positive values like right to life, freedom of speech and expression, but freedom of speech and expression does not include freedom to distort orders of the court and present incomplete and a one- sided picture deliberately, which has the tendency to scandalise the court. whatever may be the motive of Ms. Arundhati Roy, it is quite obvious that she decided to use her literary fame by misinforming the public and projecting in a totally incorrect manner, how the proceedings relating to resettlement and rehabilitation had shaped in this Court and distorting various directions given by the Court during the last about 5 years. The writings referred to above have the tendency to create prejudice against this Court. She seems to be wholly ignorant of the task of the Court. The manner in which she has given a twist to the proceedings and orders of the Court is in bad taste and not expected from any citizen, to say the least.

7.                   We wish to emphasise that under the cover of freedom of speech and expression no party can be given a licence to misrepresent to the proceedings and orders of the court and deliberately paint an absolute wrong and incomplete picture which has the tendency to scandalise the court and bring it into disrepute or ridicule. The right of criticising, in good faith, in private or public, a judgment of the court cannot be exercised, with malice or attempting to impair the administration of justice. Indeed, freedom of speech and expression is the "lifeblood of democracy" but this freedom is subject to certain qualifications. An offence of scandalising the court per se is one such qualification, since that offence exists to protect the administration of justice and is reasonably justified and necessary in a democratic society. It is not only an offence under the Contempt of Courts Act but is sui generis. Courts are not unduly sensitive to fair comment or even outspoken comments being made regarding their judgments and orders made objectively, fairly and without any malice, but no one can be permitted to distort orders of the court and deliberately give a slant to its proceedings, which have the tendency to scandalise the court or bring it to ridicule, in the larger interest of protecting administration of justice.

8.                  The action of the petitioner and its leaders Ms. Medha Patkar as well as the writings of Ms. Arundhati Roy have caused us much anguish and when we express our displeasure of the action of Ms Arundhati Roy in making distorted writings or the manner in which the leaders of the petitioner Ms Medha Patkar and Mr Dharmadhikari have, after giving assurances to this Court, acted in breach of the injunctions, we do out of anguish and not out of anger. Maybe the parties were overzealous in projecting their point of view on a matter involving a large segment of tribal population, but they should not have given to themselves the liberty of acting in the objectionable manner as already noticed. We are unhappy at the way the leaders of NBA have attempted to undermine the dignity of the Court. We expected better behaviour from them."

The Court however refrained from initiating contempt proceedings in view of the "larger interest of the issued pending before" it and given the importance of the issue of resettlement and rehabilitation which was being monitored by the Court for the last five years. The Court expressed its hope that the statements made by it would have the effect of making the petitioner and its leaders to desist from acting in a manner which would have the tendency to interfere with the due administration of justice or which would violate the injunctions issued by the Court.[6]

The passages extracted above make for interesting reading. Does ignorance of the task of the Supreme Court of India constitute an offence of contempt of court? Is the offence of contempt of court sui generis in the light of the enactment of the Contempt of Courts Act, 1971 by the Union Parliament which is a law ".to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto"?[7] Can non- repetition of an alleged act of contempt of court by Roy be a valid reason for the court to drop contempt proceedings if the statements made by her previously had the effect of 'scandalising the Court'?

Bharucha, J. passed a separate order and while recording his disapproval of the statements made by Medha Patkar, Shripad Dharmadhikari and Arundhati Roy, expressed his disinclination to take action in contempt against them since, in his opinion, the Court's shoulders were broad enough to shrug off their comments and because he felt that the court's focus should not shift from the resettlement and rehabilitation of the oustees.

AN ANGRY SUPREME COURT AND THE CONVICTION OF ARUNDHATI ROY[8]

On the 15th of January 2002, G.B. Patnaik and Sethi, JJ., of the Supreme Court of India heard arguments in the second contempt case initiated against the writer Arundhati Roy.[9] It is pertinent to set out the brief factual background in which the Court suo motu initiated contempt action against the writer- activist.

The first stage of the case for criminal contempt emerged out of the following events:[10]

Ø     On the 18th of October 2000, the Supreme Court delivered its final judgment in the Sardar Sarovar Case, allowing construction to resume on the controversial dam on the Narmada River.[11] The judgment was controversial, and amongst the most vocal critics of the judgment were Medha Patkar, leader of the Narmada Bachao Andolan, Prashan Bhushan, Counsel for the NBA, and the writer Arundhati Roy.

Ø     On 13th December 2000, a few hundred people from the Narmada Valley staged a day long dharna (demonstration) outside the gates of the Supreme Court of India protesting against the judgment in the Sardar Sarovar Case.

Ø     A day later, on the 14th of December 2000, five lawyers attempted to file a First Information Report at the Tilak Marg Police Station, a stone's throw away from the Supreme Court alleging that Patkar, Roy and Bhushan had led a demonstration outside the Supreme Court, shouted filthy slogans against the court, and had physically assaulted the petitioner lawyers and threatened to kill them. The police however did not see much merit in the matter, and decided not to register a case.

Ø     More than a fortnight later, in January 2001, the same lawyers filed a petition in the Supreme Court for criminal contempt of court against Patkar, Roy and Bhushan.[12] The Supreme Court issued notice to all three, asking them to personally appear before it.[13] The three alleged contemnors responded with individual affidavits denying the charges,[14] and stated that the charges were so ridiculous that even the local police station had not entertained them. These affidavits also pointed out that the petition did not meet any of the conditions required by the Contempt of Courts Act.[15]

The judgment in this case was delivered on 28th August 2001 by G.B. Pattanaik and Ruma Pal, JJ. who dismissed the contempt petition. But before venturing to adjudicate the case on its merits, the Supreme Court highlighted the principles relating to the law of contempt. The raison d'etre for the law of contempt was expressed by Ruma Pal, J. thus

"12. A civil society is founded on a respect for the law. If every citizen chose to break the law, we would have no society at all, at least not a civil one. It is this respect for the law and of the law- enforcing agencies that, somewhat paradoxically, ensures the freedoms recognized in the Constitution. The respect is at best a fragile foundation. While it is to be built and sustained by the conduct of the persons administering the law, it has to be shored up by sanctions for actual breaches of the law and for actions destroying that respect. The law of contempt is framed for the second purpose."

The Court stated that fair criticism was always permissible and in fact was provided for by Section 5 of the Contempt of Courts Act, 1971 which provides that a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.

The Court however dwelt on the fact that any such criticism would necessarily have to be fair and that in the guise of criticising a judgment, personal criticism of the judge was impermissible.[16] The Court rightly stated that to ascribe motives to a judge was to sow the seeds of distrust in the minds of the public about the administration of justice as a whole.[17] She also referred to the convention that judges do not defend their decisions in public, and said that if citizens disrespect the persons laying down the law, they cannot be expected to respect the law laid down by them. Justice Pal accepted that the only way a Judge can defend a decision is by the strength of the reasoning in the decision itself, and it was certainly open to being criticised by anone who thought it was erroneous.

Having stated the core principles governing the exercise of the contempt jurisdiction, Justice Ruma Pal held on merits that the petition was grossly defective and unsubstantiated and should not even have been accepted by the Registry of the Court. The Court observed that almost every one of the Rules framed by the Court" had been violated and that the petition was "shabbily drafted, procedurally grossly defective". The court also observed that "apart from the defective nature of the petition, the unexplained reluctance on the part of the four petitioners to affirm an affidavit verifying the facts contained in the petition, the failure to even attempt to obtain the consent of the Attorney- General or the Solicitor- General[18] and most importantly, the refusal of the police station to record an FIR on the basis of the complaint lodges by the Petitioner No. 1" were telling circumstances against the case in the petition.[19] The Court went on to say that the Registry ought not to have cleared the petition, and observed that had the attention of the Court been drawn to the procedural defects, it would have had no hesitation in rejecting the application in limine on this ground alone.

Having said this, the Supreme Court ought to have dismissed the Petition. Surprisingly, the matter did not end here. While accepting that the case filed by the 5 lawyers ought never to have been entertained, GB Pattanaik and Ruma Pal, JJ went on to say that Arundhati Roy's affidavit- in- reply contained at least three paragraphs that were prima facie contemptuous.[20] These paragraphs were extracted in the judgment:

"On the grounds that the judges of the Supreme Court were too busy, the Chief of India refused to allow a sitting judge to head the judicial enquiry into the Tehelka scandal, though it involves matters of national security and corruption in the highest places.

Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to be people, who have publicly- though in markedly different ways- questioned the policies of the government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice.

It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm."

The Court held that in these three paragraphs, Arundhati Roy,

".imputed motives to specific courts for entertaining litigation or passing orders against her. She has accused courts of 'harassing' her (of which the present proceeding has been cited as an instance) as if the judiciary were carrying out a personal vendetta against her. She has brought in matters which were not only not pertinent to the issues to be decided but has drawn uninformed comparisons to make statements about the court which do not appear to be protected by the law relating to fair criticism."[21]

Ruma Pal, J. concluded by directing that notice in the prescribed form be issued to Roy asking her to show cause as to why she could not be proceeded against for contempt for the statements made in the three paragraphs of her affidavit. 

Based on this judgment, a fresh contempt notice was issued to Arundhati Roy. In her reply to this notice, Roy pointed out the circumstances in which she said what she did in her affidavit. She pointed out that the absurd and grossly defective nature of the first contempt petition against her had been acknowledged by the Court itself. For a common citizen like her, not well versed in the processes of the law, there was no distinction between the court and its registry she found it very strange that though the judges of the Supreme Court were obviously very busy, they still found time to entertain such a petition. She went on to say that, in the circumstances, "it seemed perfectly appropriate to air my views that in this particular instance, the court, by allowing certain citizens to grossly abuse its process in this way, creates a disturbing impression that there is an inclination on the part of the Court to silence criticism and muzzle dissent. This does not, and was not meant to impute motives to any particular judges. It does not, nor was meant to undermine the dignity of the court. I was simply stating an honest impression that had formed in my mind."

Roy went on to say that her impression would have been corrected if the court had done any or all of the following things:

            "a)            Dismissed the petition without issuing notice.

b)             Ordered an inquiry into the functioning of the Registry to establish how such a 'procedural lapse' could have taken place.

c)              Taken action against the Petitioners for filing a false case and deliberately attempting to mislead the Court."

Roy also pointed out that instead, the Court denied the members of the public entry into the court on each occasion when the matter came up for hearing. She also referred to the fact that the Court took no action against one of the Petitioners, R.K. Virmani, who stood up and shouted without any justification that he had lost confidence in the judges hearing the matter and that it should be transferred to another Bench.

She drew attention to the contempt of court case against the former Law Minister, Shiv Shankar who had, in a public speech, accused judges of having an "unconcealed sympathy for the haves" and who went on to say that "anti- social elements i.e., FERA violators, bride burners and whole hordes or reactionaries have found their haven in the Supreme Court".[22] He was however not held guilty of contempt and the Supreme Court held that though unfortunate, these were his views and he was entitled to air them.

Roy concluded her affidavit- in- reply by saying:

"Whimsical interpretations of the same law leave citizens at the mercy of individual judges. If the 3 paragraphs of my affidavit dated 16/4/2002 are deemed to be a criminal offence, it will have the chilling effect of gagging the Press and preventing it from reporting on and analyzing matters that vitally concern the lives of millions of Indian citizens. This will be an unfortunate blow to one of the most responsible, robust institutions of Indian democracy. The prospect of having to undergo a lengthy and exorbitant process of litigation, and the threat of an eventual prison sentence, will effectively restrain the press from writing about or analyzing the actions of the judiciary. It will render the judiciary accountable to no one but itself. As I have stated in my affidavit dated 16.4.2001, if the judiciary removes itself from public scrutiny and accountability, and severs its links with the society that it was set up to serve in the first place, it will mean that another pillar of Indian democracy will eventually crumble."

On 15th January 2002, this contempt petition came up for final hearing before a Bench of Justice Pattanaik and Justice Sethi. Appearing for the alleged contemnor, Mr. Shanti Bhushan moved an Application on her behalf asking Justice Pattanaik to recuse himself from the proceedings and transfer this case to some other court, on the ground that since the allegation against Roy was that she had attributed motives to him (he being the judge who had issued notice in the first contempt petition), she had a reasonable apprehension of bias on his part. Roy's application stated that in hearing and deciding this contempt petition, Justice Pattanaik would be sitting as a judge in his own cause. The Court did not take kindly to this Application. In fact, Justice Pattanaik said that the Application should have been made earlier and not when the matter had been listed for final hearing, and that the objection sought to raised was mala fide.

Mr. Shanti Bhushan argued that under the Indian Constitution, freedom of speech was paramount and could only be subjected to 'reasonable restrictions for contempt of court. it was universally accepted that the Courts and their judgments could be criticised in the most trenchant terms. Moreover, what Roy had said was in reply to a court notice (unlike Shiv Shankar who gave a public speech). Voicing one's perception in an affidavit in court could not constitute contempt of court.

Altaf Ahmed, the Additional Solicitor- General appeared as an amicus curiae (friend of the Court) and submitted that the freedom of speech was subject to the law of contempt. He argued that Roy's affidavit contained a blatant imputation of a motive on the court and was therefore destructive of the independence of the judiciary. He said that in the past, people who had "erred" had tendered unconditional apologies which the court had accepted "magnanimously". Roy however, had been defiant and her current affidavit did not contain a hint of apology or remorse, and she had instead delivered a gratuitous lecture to the court, he argued that even after the Shiv Shankar case, there had been many instances in which the Court had sentenced persons for imputing motives or otherwise scandalising the court.

Sethi, J., delivered the judgment for the court. The judgment starts off with a reiteration of the principle that 'rule of law' constituted the basic rule of governance in civilised democratic polity and part of the Indian constitutional scheme. The judge then set out what he thought to be the purpose of conferring courts the power to punish for contempt:

"For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of the judiciary. Its impartiality and the glory of law has to be maintained, protected and strengthened. The confidence in the courts of justice, which the people possess, cannot in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of the judicial repository which, when needed, can reach any neck howsoever high or far away it may be."

The beginning of the judgment itself is poorly reasoned. The court admits in the first part of the paragraph that the judiciary is being endangered not only by external forces, but also by forces from within. In other words, it accepts the fact that there exist black sheep in the judiciary which has inescapably tarnished the image of the judiciary. If this is the problem highlighted by the court, then the solution suggested by it could not have less correlation to the problem. If much of the dangers to the judiciary stems from within, how can the "long hand of contempt of court" be "the only weapon" for courts to protect themselves? Surely, it behoves the court to introspect and put its own house in order with a strong hand when threatened by forces internal to the judiciary. Else, it would legitimately attract the criticism that the power of courts to commit for contempt is used to shield deviant judges rather than the institution itself. The court committed the cardinal error of citing, but refusing to follow the principle enunciated by Frankfurter, J in Pennekamp v. Florida[23]:

"If men, including Judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise."

The court then addressed the tension between the guarantee of free speech contained in the Constitution and the power of courts to punish for contempt:

"No person can flout the mandate of law of respecting the courts for establishment of rule of law under the cloak of freedom of speech and expression guaranteed by the Constitution. Such a freedom is subject to reasonable restrictions imposed by any law. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression, so far as they do not contravene the statutory limits as contained in the Contempt of Courts Act, are to prevail without any hindrance. However, it must be remembered that the maintenance of the dignity of courts is one of the cardinal principles of rule of law in a democratic set- up and any criticism of the judicial institution couched in language that apparently appears to be mere criticism but ultimately results in undermining the dignity of courts cannot be permitted when found having crossed the limits and has to be punished."

After having set out the rationale of the power to punish for contempt in most unsatisfactory terms, the court sought to examine the case against the Roy. Perhaps the most objectionable part of the judgment is Sethi, J. trying to state the case against Roy:

"The respondent (Roy) who is stated to be an author of name and fame, has landed herself in the dock of the Court, apparently by drifting away from the path on which she was traversing by contributing to art and literature."

This statement was clearly unnecessary and is indicative of the biases and prejudices of individual judges having a bearing on their decision. Is it part of the judicial function to ascertain what the correct path of an individual should be or what activities he or she should indulge in? Can drifting away from one's primary activity be reason enough for a person to land in the dock of the Court? Is not a writer or for that matter, any person entitled to espouse a democratic cause and actively campaign for the same? Such judicial statements, recklessly made, can seriously impair public confidence in the judiciary- something which the Hon'ble Supreme Court was supposedly striving to protect in the case before it.

In her reply affidavit to the notice of the court, Roy had stated that as a consequence of the Supreme Court judgment, the people in the Narmada Valley were likely to lose their homes, their livelihood and their histories. She stated:

"I believe that the people of the Narmada Valley have the constitutional right to peacefully (protest) against what they consider an unjust and unfair judgment. As for myself, I have every right to participate in any peaceful protest meeting that I choose to. Even outside the gates of the Supreme Court. As a writer, I am fully entitled to put forward my views, my reasons and arguments for why is believe that the judgment in the Sardar Sarovar case is flawed and unjust and violates the human rights of the Indian Citizens. I have the right to use all my skills and abilities such as they are, and all the facts and figures at my disposal, to persuade people to my point of view."

Roy also stated that she had written and published several essays and articles on the Narmada issue and the Supreme Court judgment, none of which was intended to bring the Court into contempt, but only to express her disagreement with the court's views on the subject. It was her opinion that big dams were economically unviable, ecologically destructive and deeply undemocratic. Roy went on to state:

"But whoever they are, and whatever their motives, for the petitioners to attempt to misuse the Contempt of Courts Act and the good offices of the Supreme Court to stifle criticism and stamp out dissent, strikes at the very roots of the notion of democracy.

In recent months, this Court has issued judgments on several major public issues. For instance, the closure of polluting industries in Delhi, the conversion of public transport buses from diesel to CNG, and the judgment permitting the construction of the Sardar Sarovar Dam to proceed. All of these have had far- reaching and often unanticipated impacts. They have materially affected, for better or for worse, the lives and livelihoods of millions of Indian citizens. Whatever the justice or injustice of these judgments, whatever their finer legal points, for the Court to become intolerant of criticism of expressions of dissent would mark the beginning of the end of democracy.

An 'activist' judiciary, that intervenes in public matters to provide a corrective to a corrupt, dysfunctional executive, surely has to be more, not less accountable. To a society that is already convulsed by political bankruptcy, economic distress and religious and cultural intolerance, any form of judicial intolerance will come as a crippling blow. If the judiciary removes itself from public scrutiny and accountability, and severs its links with the society that it was set up to serve in the first place, it would mean that yet another pillar of Indian democracy will crumble. A judicial dictatorship is as fearsome a prospect as a military dictatorship or any other form of totalitarian rule.

The Tehelka tapes broadcast recently on a national television network show the repulsive sight of the Presidents of the Bharatiya Janata Party and the Samata Party (both part of the ruling coalition) accepting bribes from spurious arms dealers. Though this ought to have been considered prima facie evidence of corruption, yet the Delhi High Court declined to entertain a petition seeking an enquiry into the defence deal that were referred to in the tapes. The Bench took strong exception to the petitioner approaching the Court without substantial evidence and even warned the petitioner's counsel that if he failed to substantiate its allegations, the Court would impose costs on the petitioner.

On the grounds that Judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting Judge to head the judicial enquiry into the Tehelka scandal, even though it involves matters of national security and corruption in the highest places. 

Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to be people who have publicly- though in markedly different ways- questioned the policies of the Government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice.

It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who do not agree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.

In conclusion, I wish to reaffirm that as a writer I have a right to state my opinions and beliefs. As a free citizen of India, I have the right to be part of any peaceful dharna, demonstration or protest march. I have the right to criticize any judgment of any court that I believe to be unjust. I have the right to make common cause with those I agree with. I hope that each time I exercise these rights I will not be dragged to court on false charges and forced to explain my actions."

Sethi, J. stated that although the above paragraphs of the affidavit appeared to have caused no injury to any judge or judges personally, it resulted in a wrong done to the public. This was because, the Judge reasoned, that Roy had created an impression in the mind of the "people of this backward country regarding the integrity, ability and fairness of the institution of the judiciary." The judge tries to fortify his opinion by attempting to decipher the legislative purpose in enacting the Contempt of Courts Act, 1971. According to him, the legislature enacted the said law keeping in mind ". the ground realities and prevalent socio- economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled, but who avowedly have tremendous faith in the dispensers of justice."

This sweeping ex cathedra observation is based on fairly tenuous logic. The judge does seem to think of India in terms of a second- class democracy consisting of an unsuspecting public which can be easily befooled by any statement made (not even in a widely circulated newspaper article but in an affidavit filed in the Apex Court). If the judge is really right when he says that the people of India have tremendous faith in the courts of the land, scarcely can such tremendous confidence be dented by some isolated statement made in an affidavit not easily available to the public.

The judgment also has an elitist bias in so far as it conceded the right to fair criticism of courts and judges, but at the same time seemingly confined this right to those well- versed in the law. Sethi, J. stated: "All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself."

Roy did not claim to possess any special knowledge of law and the working f the institution of the judiciary. She did not claim to have made any study regarding the working of the Supreme Court or the judiciary in India. As such, the benefit afforded to certain offending statements made by Mr. P. Shiv Shanker, a former Law Minister could not be extended to Roy. Roy could not even claim to be in the position of E.M.S. Namboodiripad who believed in the philosophy he was propounding and had made certain observations regarding the working of the courts.[24]

The court held that the affidavit of Roy amounted to a destructive attack on the reputation and credibility of the judiciary and far exceeded the scope of fair criticism. Further, Roy had shown no repentance and stood by the statements made in her affidavit. The Court concluded thus:

"32.            . (Roy) wanted to become a champion to the cause of writers by asserting that persons like her can allege anything they desire and accuse any person or institution without any circumspection, limitation or restraint. Such an attitude shows her persistent and consistent attempt to malign the institution of the judiciary found to be the most important pillar in the Indian democratic set- up. This is no defence to say that as no actual damage has been done to the judiciary, the proceedings be dropped. The well- known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of the rule of law, the expected norm of any civilised society.

33.            On the basis of the record, the position of law, our findings on various pleas raised and the conduct of the respondent, we have no doubt in our mind that the respondent has committed the criminal contempt of this Court by scandalising its authority with mala fide intentions. The respondent is, therefore, held guilty for the contempt of court punishable under Section 12, of the Contempt of Courts Act.

34.            As the respondent has not shown any repentance or regret or remorse, no lenient view should be taken in the matter. However, showing the magnanimity of the law by keeping in mind that the respondent is a woman, and hoping that better sense and wisdom shall dawn upon the respondent in the future to serve the cause of art and literature by her creative skill and imagination, we feel that the ends of justice would be met if she is sentenced to symbolic imprisonment besides paying a fine of Rs. 2000.

35.            While convicting the respondent for contempt of the Court, we sentence her to simple imprisonment for one day and to pay a fine of Rs. 2000. In case of default in the payment of fine, the respondent shall undergo simple imprisonment for three months."

The decision of the Court in Arundhati Roy's case has been roundly criticised by the popular press,[25] academics and legal experts[26] and by Arundhati Roy herself.[27] The decision has created a feeling that there is something terribly amiss about a law and a legal environment which imposes unreasonable restrictions on the freedom of speech and punishes people for nothing more than speaking their mind. The conviction of Arundhati Roy by the Supreme Court for criminal contempt is an unfortunate and disturbing incident in Indian constitutional history and should worry all those who believe that the law of criminal contempt, an extraordinary legal provision which vests extraordinary and largely unfettered powers with the courts, should be used only in the most sparing manner and in the rarest of the rare cases. An analysis of the decision reveals that the Supreme Court seems to have overlooked the fact that the principal objective of the Contempt of Courts Act, 1971 is to protect the authority and dignity of the Court. The provisions of the Act are not intended to suppress criticism (even if expressed trenchantly) of court judgments, discourage frank and free expression about the state of the legal system or, as sought to be done by Sethi,J., to bring 'errant' writers to book.

The Supreme Court seemed to think that it was magnanimous in sentencing the Booker Prize winning author to (an ostensibly nominal) punishment of a day's imprisonment and a fine of Rs. 2000. But in a larger sense, it only reflects yet another instance of the tendency of the judiciary to interpret the law of criminal contempt in an extremely rigid and arbitrary manner. In criticising the Supreme Court's judgment on the Narmada Dam issue and in defending herself against a contempt notice by a vociferous affidavit, Roy had admittedly been unsparing in her criticism of the Supreme Court. Yet, at the same time, the Apex Court was obliged to ensure that judicial sensitivities was not allowed to get the better of judicial restraint.

It may be true that matters would not have come to such a pass if Roy, in the course of her long and passionate affidavit- in- reply, had refrained from making a couple of questionable references or had chosen to retract them when given an opportunity to do so. But the overall progression of the contempt case, which began with a defective petition and ended with an unfortunate conviction, raises issues which go beyond the three allegedly offending paragraphs in Roy's affidavit. They concern the worrying ease with which the Indian courts invoke criminal contempt even as the courts in other comparative jurisdictions have virtually given up this power.

Dissent or criticism, howsoever strongly worded, must be permissible in any democracy. Roy's criticism of the Supreme Court is no doubt hyperbolic, but any lay reader would most certainly agree that the criticism is not male fide, motivated or contemptuous. Airing one's opinion on a judgment of the court cannot be said to be outside the protection of Art. 19(1)(a) of the Constitution. This does not lower the dignity or power of the Court. If it is so, when the judgment of a lower court is reversed in an appellate court, can the dignity of the court be said to be lowered? Can the opinion voiced by an individual lower the dignity of a court? If any criticism made by such an individual is found to be unfounded, would this not automatically rebound on the reputation and credibility of the person who made it? On the other hand, if such criticism is valid, can the court hope to restore its dignity by punishing or silencing the critic? The Contempt of Courts Act has been enacted to 'define and limit' the powers of courts to punish for contempt. Has the judicial interpretation of the Act defined or limited the powers of the courts, or has it rather been misused to stifle genuine criticism against the judiciary? These questions do find any satisfactory answers in the judgment in Roy's Case.

The nature of democratic institutions in a democracy requires that all institutions profess the virtues of fundamental freedoms, more so when accused of disregarding them. The reason that courts and judges are held in high esteem is because of the difficult task they perform in considering intricate issues and attempting to arrive at reasonable judgments. Given that the issues that judges are called upon to decide are often complex, and more than one view is often possible, some disagreement over the fairness of outcomes is inevitable. But when someone takes issue with a judgment, judges must act with patience and utmost restraint. Unusually aggressive prosecution of such criticism under the provision of the law of contempt of court would be unjudicial, and possibly injudicious.

The lack of clear and precise criteria to assess as to what "scandalises" the court, the dubious legal position where even truth is not a valid defence to a charge of contempt and the fact that, in a contempt proceeding, the judge and the prosecutor are the very same have complex ramifications. Together, they demand that the judiciary observes a tremendous amount of restraint when invoking criminal contempt. The conclusion is inescapable that the Supreme Court fell abysmally short of discharging this solemn responsibility in Arundhati Roy's Case.

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[1] B.A.LL.B. (Hons.) (NLSIU); LL.M (Cantab); Advocate, High Court of Karnataka, Bangalore.

[2] Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664. In this case, an organisation called the Narmada Bachao Andolan (NBA) filed a petition under Article 32 of the Constitution of India before the Supreme Court of India. The Petitioner was a movement or andolan which was concerned with the adverse environmental impact of the construction of the dam across the Narmada River. The grievance of the petitioners was that a large number of persons, mostly tribals and other marginalized groups were being forcibly uprooted from their homes and lands on account of the project. Further, such construction has been undertaken without even having completed the studies regarding the environmental impact of the project.

The petition was heard and finally decided by a Bench of three judges, and the majority judgment was delivered by Kirpal, J. speaking for himself and Chief Justice A.S. Anand. The majority rejected the challenge on the following grounds:

·         The majority held that when hundreds of crores of rupees was expended on a project of such great magnitude, individuals or organizations under the garb of PIL could not permitted to challenge the policy decision taken at a belated stage.

·         The Court, in the exercise of their jurisdiction, would not transgress into the field of policy decision. Whether to have an infrastructure project or not, the type of project and the mode of execution were all matters which courts were ill- equipped to adjudicate on. Having said this, Kirpal, J. strangely went on to extol the benefits of the project, and concluded that the construction of the dam would result in a multifold improvement in the environment of the areas where the canal waters would reach. The majority, despite declaring itself incompetent  to do so, seems to have undertaken a cost- benefit analysis, and concluded that the benefits from the project far outweighed its drawbacks.

·         The majority sought to laud the benefits of large dams, and concluded that large dams could convert wasteland into agricultural land and become instruments in making the area greener and improving the environment.

·         At the time when the environmental clearance was granted, whatever studies were available were taken into consideration. If certain data was not available, it could not mean that the decision to grant environmental clearance could be said to be vitiated. In any case, ameliorative steps could always be taken to counter the adverse effect, if any, on the environment with the construction of the dam.

·         The majority held that the project in issue was only a dam, and not a nuclear establishment or a polluting factory and therefore it would be incorrect to presume that the project would lead to an ecological disaster. Kirpal, J. concluded that there was conclusive evidence to indicate that there had been ecological upgradation with the construction of large dams in the Indian experience and that the Sardar Sarovar Project would be making a positive contribution for the preservation of the environment in many ways.

The majority then allowed the construction of the dam to go ahead, and passed various incidental directions for the completion of the project at the earliest and for the resettlement and rehabilitation of the oustees.

Justice Bharucha partly dissented from the opinion of the majority and in his judgment held as under:

·         The petitioners were not guilty of laches and that when public interest was so demonstrably involved in the petition, it would be against public interest to decline relief only on the ground that the Court was approached belatedly.

·         The environmental clearance was based on next to no data in regard to the environmental impact of the project and was therefore contrary to the terms of the then policy of the Union in regard to environmental clearances.

·         Under the professed policy of the Ministry of Environment and Forests, the Union of India was bound to give environmental clearance only after (i) all the necessary data in respect of the environmental impact had been collected and assessed; (ii) the assessment showed that the project could succeed; and (iii) the environmental safeguard measures and their cost had been worked out.

·         An adverse impact on the environment could have disastrous consequences for present and future generations, and the Supreme Court itself had recognized this in its various judgments under Article 21 of the Constitution. The Supreme Court could not place its seal of approval on a project of such enormous magnitude without first ensuring that those best fitted to do so had the opportunity of ascertaining the environmental impact of the project and deciding on necessary safeguard measures to be undertaken. Such studies would have to precede the project and ex post facto studies and surveys could not be used to justify the project. Until environmental clearances were accorded by the authorities concerned, further construction on the dam would have to cease.

For an excellent analysis of the various issues involved in the Narmada Case, see Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India 441-458 (2001).

[3] The judgment of the Court is reported in Narmada Bachao Andolan v. Union of India and Others, (1999) 8 SCC 308.

[4] Arundhati Roy, "The Greater Common Good", http://www.narmada.org/gcg/gcg.html (accessed on February 19, 2004).

[5] The paragraphs which were considered objectionable by the Court was set out by the Court and are extracted as hereunder:

                "I stood on a hill and laughed out loud.

I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the opposite bank from where I could see, ranged across the crowns of low, bald hills, the tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragile homes. I could see their fields and the forests behind them. I could see little children with littler goats scuttling across the landscape like motorised peanuts. I knew I was looking at a civilisation older than Hinduism, slated- sanctioned (by the highest court in the land)- to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to submerge it.

*                      *                      *

                Why did I laugh?

Because I suddenly remembered the tender concern with which the Supreme Court judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar Dam) had enquired whether tribal children in the resettlement colonies would have children's park to play in. the lawyers representing the Government had hastened to assure them that indeed they would and what's more, that there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect.

*                      *                      *

Who owns this land? Who owns its rivers? Its forests? Its fish? These are huge questions. They are being taken hugely seriously by the State. They are being answered in one voice by every institution at its command- the army, police, the bureaucracy, the courts. And not just answered, but answered unambiguously, in bitter, brutal ways.

*                      *                      *

According to the Land Acquisition Act of 1894 (amended in 1984) the Government is not legally bound to provide a displaced person anything but a cash compensation. Imagine that. A cash compensation, to be paid by an Indian government official to an illiterate tribal man (the women get nothing) in a land where even the postman demands a tip for a delivery! Most tribal people have no formal title to their land and therefore cannot claim compensation anyway. Most tribal people- or let's say most small farmers- have as much use for money as a Supreme Court Judge has for a bag of fertiliser."

[6] The court decided not to initiate contempt proceedings against Roy on the ground that since 22.7.1999 when the court passed an order appointing an amicus curiae, Roy had written nothing objectionable in so far as the judiciary was concerned. The court attributed this to the fact that Roy had perhaps realised her mistake, and decided not to pursue the matter further.

[7] Whether the Contempt of Courts Act lays down an exhaustive statement of the law of contempt in India is an interesting issue which is adverted to in greater detail in a later section of this paper. See Section 22 of the Act.

[8] See (2002) 3 SCC 343.

[9] An interesting fact about this proceeding was that when this case came up for hearing, no visitors or journalists (other than officially accredited court correspondents) were allowed entry into court. The Registrar said that he had 'orders from above' in this case not to allow entry to everyone. This matter was also apparently raised with the Bench, but no measures were taken to either explain or redress this curious phenomenon. A preference for virtually an in- camera proceeding is in contrast with the fundamental spirit of open courtrooms and public justice.

[10] J.R. Parashar v. Prashant Bhushan and Others, (2001) 6 SCC 735.

[11] Narmada Bachao Andolan v. Union of India, (1999) 8 SCC 308.

[12] According to the petition, the dharna, slogan- shouting and assault on the petitioners were designed to compel the Supreme Court to decide a pending application filed by the NBA in its favour.

[13] The Supreme Court also explained the reasons for issuance of the notice to the Respondents thus:

"2. Given the allegations in the petitions that the respondents had incited a crowd by shouting slogans attacking the integrity of the Judges of this Court, notices were issued to the respondents of the application, so that they could give their version of the incident, if it had taken place at all."

J.R. Parashar v. Prashant Bhushan and Others, (2001) 6 SCC 735 (para 2).

[14] Medha Patkar, the 2nd Respondent in her affidavit stated the background of the Narmada Bachao Andolan and the merits of the case of the oustees whose case she represented. She further stated:

"The superior courts have recently shown a disturbing tendency to use the power of contempt against persons who have been criticizing the courts and their judgments. A judiciary which insulates itself from criticism by using the power of contempt, is bound to be insensitive to the people it is meant to serve. This does not bode well for the future of our republic. I will continue to help them raise their voices in protest against this system even if I have to do so against the judiciary and the courts. I will continue to do so as long as I can, even if I have to be punished for contempt for doing that." (Para 5).

[15] The Petition was no supported by a proper affidavit, it was not signed by the Petitioners, and it did not contain the addresses of the Petitioners or of the Respondents. Most crucially, the Petition did not have the consent of the Attorney- General or the Solicitor- General and hence did not comply with the procedure set out in Section 15 of the Contempt of Courts Act, 1971. Section 15 of the Contempt of Courts Act provides as follows:

"15. Cognizance of criminal contempt in other cases.-

(1)                 In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by-

(a)                 the Advocate- General; or

(b)                any other person, with the consent in writing of the Advocate- General; or

(c)                  in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may by notification in the Official Gazette, specify in this behalf or any other person, with the consent in writing of such Law Officer.

(2)                 In the case of any criminal contempt of subordinate court or on a motion made by the Advocate- General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(3)                 Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.

Explanation: In this section, the expression "Advocate- General" means-

(a)                 in relation to the Supreme Court, the Attorney- General or the Solicitor- General;

(b)                in relation to the High Court, the Advocate- General of the State or any of the States for which the High Court has been established;

(c)                  in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(emphasis supplied)

Thus, the Act seems to provide for a filtering mechanism with frivolous complaints being weeded out by the Advocate- General.

[16] The Court referred to the decision of the Privy Council in Andre Paul Terence Ambard v. Attorney- General of Trinidad and Tobago, AIR 1936 PC 141 which principle, it stated, was still the law on the point:

"No wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."

[17] See also Rama Dayal Markarha v. State of M.P., (1978) 2 SCC 630.

[18] The Court also referred to the fact that the petition did not comply with the mandatory provisions of the Contempt of Courts Act which were a pre- requisite for the initiation of contempt proceedings. Sections 14 and 15 of the 1971 Act both deal with the procedure for taking cognizance in cases of criminal contempt. In cases where the contempt is in the face of the Supreme Court or the High Court, the Court acts suo motu. However, in other cases of criminal contempt which does not fall within the scope and ambit of Section 14, the Supreme Court or the High Court has the power under Section 15(1) to take action "on its own motion or on a motion made by-

(a)      The Advocate- General; or

(b)     Any other person, with the consent in writing of the Advocate- General."

The Explanation to the provision clarifies that the expression "Advocate- General in relation to the Supreme Court, means the Attorney- General or the Solicitor- General.

Thus, the Act provides for a filtering mechanism before actions for contempt can be initiated. The underlying rationale of the scheme set out above is that when the court is not itself aware of the contumacious conduct, and the actions are alleged to have taken place outside its precincts, it is necessary to have the allegations screened by a responsible constitutional functionary so that frivolous complaints are weeded out at this stage itself. This provision has been inserted on the basis of the following recommendations of the Sanyal Committee which had been set up in 1961 to consider and suggest reforms to the existing law of contempt:

"In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that it would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large."

Cited from J.R. Parashar v. Prashant Bhushan and Others, (2001) 6 SCC 735 (para 21). See also S.K. Sarkar v. V.C. Mishra, (1981) 1 SCC 436.

[19] The Court clarified that holding a dharna by itself may not amount to contempt. But if by holding a dharna, access to the courts was hindered and the officers of the court were not allowed free ingress and egress, or the proceedings in court were disrupted, a dharna would amount to contempt because the administration of justice would be obstructed. 

At the same time, Justice Ruma Pal hastened to add that this should not be understood as approving the holding of a dharna before the Court. While such a protest may not constitute contempt, it necessarily had to be discouraged and deprecated since otherwise every disgruntled litigant could adopt this method of ventilating his/ her grievance. The Court then opined that a dharna was ". an inappropriate form of protest since the object of holding a dharna is either to raise public opinion or to exhibit the extent of public opinion against a decision of a court. Neither of these objects weigh with courts when deciding a case. Judges are required to decide what they think is right according to the law applicable and on the material placed before them and not be swayed by public opinion on any particular issue." (emphasis supplied)

The above statement has useful implications for the sub judice rule which is discussed in a later part of the present paper.

[20] The Court held that the filing of an affidavit amounted to a publication within the definition of criminal contempt. The reason advanced was that an affidavit was not a secret document, but forms part of the court records and is therefore available to and accessible by the public. (para 34).

[21] Para 38.

[22] P.N. Duda v. P. Shivshanker, (1988) 3 SCC 167.

[23] 90 L Ed 1295; 328 US 331 (1946).

[24] P. Shiv Shanker,  at the relevant point of time was the Minister of Law, Justice and Company Affairs, had stated in a public speech that the ".Supreme Court, composed of the elements of the elite class, had their bride- burners, and a whole horde of reactionaries, have found their haven in the Supreme Court." The Supreme Court in P.N. Duda v. P. Shiv Shanker, (1988) 3 SCC 167 held that the statements did not amount to an offence of scandalizing the court.

Sethi, J. referred to the decision in P. Shiv Shanker and opined that the statements were permissible because they were made by a person who had been a judge of the High Court and was the Minister at the relevant time. But this latitude could not be allowed to someone like Roy or other citizens. In other words, the Supreme Court seems to have indicated that it is not what one says, or the correctness or justification of such statement, but rather the status of the person making the statement, that would determine whether such statement would amount to an offence of criminal contempt or not. Thus, the grand assertion made by Sethi, J. in the beginning of the judgment that "whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful or how rich he or she might be" is unfortunately contradicted in a latter portion of the very same judgment!

[25] "Law of Contempt Stands Like a Sword over Media", The Hindu, March 16, 2003; "Judicial 'Intolerance' to Criticism Decried", The Hindu, March 31, 2002.

[26] "The Conviction of Arundhati Roy", The Hindu, March 07,2003;

[27] Roy issued a statement after her release from Tihar Jail on March 7,2002 standing by what she stated in her Afidavit. "Arundhati Roy's Statement", Frontline, Vol. 19, Issue 6, March 16-29,2002. In her statement, Roy reiterated her stand thus:

"I stand by what I have said in my Affidavit and I have served the sentence which the Supreme Court imposed on me. Anybody who thinks that the punishment for my supposed 'crime' was a symbolic one day in prison and a fine of two thousand rupees, is wrong. The punishment began over a year ago when notice was issued to me personally in Court over a ludicrous charge which the Supreme Court itself held should never have been entertained. In India, everybody knows that as far as the legal system is concerned, the process is part of the punishment.

.

There are parts of the judgment which would have been deeply reassuring if it weren't for the fact that citizens of India, on a daily basis, have just the opposite experience- "Rule of Law is the basic rule of governance of any civilized, democratic polity. Whoever the person may be, however high he or she is, no one is above the law notwithstanding however powerful and how rich he or she may be."

If only!

I wish to reiterate that I believe that the Supreme Court is an extremely important institution and has made some enlightened judgments. For an individual to argue with the Court, does not in any way imply that he or she has a stake in this society and cares about the role and efficacy of that institution. Today, the Supreme Court makes decisions that affect- for better or for worse- the lives of millions of common citizens. To deny comment and criticism of this institution, on pain of criminal contempt, from all but an exclusive club of 'experts' would, I think, be destructive of the democratic principles on which our Constitution is based.

The judiciary in India is possibly the most powerful institution in the country, and as the Chief Justice recently implied, the least accountable. In fact, the only accountability of this institution is that it can be subjected to comment and criticism by citizens in general. If even this right is denied, it would expose the country to the dangers of judicial tyranny.

I was also puzzled by the statement in the judgment that says: '. showing the magnanimity of law, by keeping in mind that the respondent is a woman, and hoping that better sense and wisdom shall dawn upon the respondent.' Surely, women can do without this kind of inverse discrimination.

Lastly, I wish to point out that the judgement says that I have drifted away 'from the path on which she was traversing by contributing to the Art and Literature.' I hope that this does not mean that on top of everything else, from now on writers will have to look to the Supreme Court of India to define the correct path of Art and Literature."

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