[Reader-list] Re: Nangla/SC Proceedings/Notes/9th May 2006

[Lawrence Liang]

Hi all

A few thought on the notes made by Shveta on the SC proceedings on Nangla
Maanchi, in addition to those made by Shuddha and others.

Lawrence

 
For far too long the contempt  powers of the court have managed to stifle
any critique of judicial pronouncements, and in the recent few months we
have seen decisions which enable demolitions, whole scale destruction of
Narmada Valley, regressive decisions allegedly for the protection of women
etc. The new role of the court is one in which the judiciary has truly
become the source for the determination of the 'state of exception'. It is
perhaps time to rethink the idea of contempt of court, and like many other
things a missing word here, a different emphasis of reading there, leads to
very different consequences and makes all the difference. It might well be
worth our while to think of contempt, not in terms of contempt of court but
contempt of the court, because what stands out in the notes of the
proceedings on Nangla Maanchi is the sheer contempt with which the judiciary
is able to pronounce on the lives of people.
 
The law  of contempt attempts to protect the courts from any act that tends
to lower its authority. That the court is in need of protection is  course
highly ironic, but it is perhaps not that ironic when we consider that it is
usually the  greatest despots who also have the greatest security
arrangements. There is therefore a recognition in the law of contempt of the
power of words and language, and its ability to cause harm. But what is this
power of language to cause harm and is it equally distributed; if a person
attempts to critique any action of the court through the  "publication
(whether by words, spoken or written or by signs, or by visible
representation, or otherwise)", the damage to the court is seen to be
irreparable. In a decision on contempt by a 'writer who drifted away from
the path of literature into political criticism, the courts said that "This
is no defense 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
rule of law, the expected norm of any civilised society".
 
But even as children we learnt that words and stones can break my bones but
words cannot hurt me. We know know that this is not true, and words indeed
can hurt, but are do all  words have the same force to be able to hurt, what
are the special characteristics required of words for them to be able to
hurt, and who indeed may utter contemptuous words with the ability to hurt?
 
 
Robert Cover says that "Legal interpretation takes place in a field of pain
and death. This is true in several senses. Legal interpretive acts signal
and occasion the imposition of violence upon others: A judge articulates her
understanding of a text, and as a result, somebody loses his freedom, his
property, his children, even his life. Interpretations in law also
constitute justifications for violence which has already occurred or which
is about to occur. When interpreters have finished their work, they
frequently leave behind victims whose lives have been torn apart by these
organized, social practices of violence. Neither legal interpretation nor
the violence it occasions may be properly understood apart from one another
Taken by itself, the word 'interpretation' may be misleading.
'Interpretation' suggests a social construction of an interpersonal reality
through language. But pain and death have quite other implications. Indeed,
pain and death destroy the world that 'interpretation' calls up. That one's
ability to construct interpersonal realities is destroyed by death is
obvious, but in this case, what is true of death is true of pain also, for
pain destroys, among other things, language itself.
 
For Cover, the power of language also emerges in its sharpest form when
backed by sovereign authority so it is not any speech act that has the
capacity to hurt, but those which emerge from a relational context of the
utterer and the subject of enunciation. A lover¹s words have the capacity to
hurt, but this hurt is qualitatively different from the hurt that the words
of a court of law causes. My contempt for an individual or for an
institution has therefore to be seen very differently from the contempt of
the sovereign utterances of the court.
 
If we were to then reconfigure contempt to recognize the question of power,
and who has the power to actually practice contempt, then it seems that one
of the prime candidates has to be the court. So that The Contempt of The
Court emerges from speech acts which speculate on the fact that it will
"never comfortable to live out", and that there will always be intense heat,
or cold, or rainfall in the city. This attention to the various fragilities
of a bare life accompanied the prospect of immediate violence and
displacement constitutes an act of contempt that ³scandalises or tends to
scandalise, or lowers or tends to lower the authority of people². When it
observes that if public land is occupied, it will "have to be vacated", and
that the right to shelter did not mean that "everyone be given shelter", it
a contemptuous statement that ³interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any other
manner² and on these counts surely it is arguable that the power of contempt
lies not only against the court, but equally by the courts.
 
If I act in a manner that is contempt of another person, s/he may retaliate
with an equal measure of contempt for me. But what happens when the court
acts in contempt of people? Do we have the ability to retaliate with an
equal measure of contempt? Ironically since your statement can land you in
the dock, it could well be said that you do not actually have any power to
retaliate against contempt of the court (atleast not one without unpleasant
consequences).
 
An area filled with people, lives and stories is narratively rendered
useless in favour of Œuses that cannot be denied¹, the right to shelter does
not mean that everyone must be given shelter and a right to free speech must
be postponed for the sake of democracy.
 
Welcome to the matrix that we call the constitution, in which rights and
entitlements exist only within the matrix and for those who live in the
reality of the Matrix. And well for the rest, welcome to the desert of the
real.