Narmada Samachar: 4 September 2001

Headlines


All this (and more) news can be accessed via the Press Clippings page at:
     http://www.narmada.org/pressclippings.html
The NBA press releases are accessible at:
     http://www.narmada.org/pressrelease.html

Archives of Narmada Samachar are accessible at:
     http://www.narmada.org/scripts/subscribe.html



Violence against NBA

Unprovoked, M.P. Police Beat Narmada Villagers In Badwani;
Many Injured, Hospitalized; Hundreds of People Protest Against Unjust Displacement
;
NBA Press Release - September 3

Chief Minister Expresses Grief Over Lathi Charge:
Meets NBA Delegation at Kasaravad - Promises Action: Dharna Continues
;
NBA Press Release - September 4



Supreme Shenanigans

Medha Patkar flays SC notice to Arundhati Roy ;
The Hindu - August 31

Not everything is comtemptible ;
Letters to the Editor; The Telegraph - August 31

Medha flays SC's directive ;
Hindustan Times - August 30



Other News

Deportation of Ali Sauer (supporter of the NBA)

Doing The Atrophy ;
Dilip D'Souza; Rediff.com - August 30

News from Tehri

Chipko villages oppose power project through Tehri forests ;
Indian Express - September 4

Displacement

Families displaced by major projects: 'Provide good rehabilitation package' ;
Deccan herald - September 4

Water harvesting

The water man of Rajasthan ;
Frontline - Volume 18 - Issue 17 - August 18 - 31



Feature Article: Judges in their own cause, Parts I and II - Prashant Bhushan

The Hindu - September 4 and 5

Part I
ON OCTOBER 15, 1999, the Supreme Court, without even giving Arundhati Roy
a notice or an opportunity to be heard - and therefore in violation of the
principles of natural justice - proceeded to make the following remarks
against her: ``Judicial 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. ... Vicious stultification and
vulgar debunking cannot be permitted to pollute the stream of justice. ...
We are unhappy at the way in which the leaders of the NBA and Ms.
Arundhati Roy have attempted to undermine the dignity of the court. We
expected better behaviour from them''.

The provocation for the use of this rather strong language by the court
were the following passages in her essay `The greater Common good', that
the court took exception to: ``I Stood on the 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 motorized peanuts. I knew that I was
looking a civilization older than Hinduism, slated-sanctioned (by the
highest Court of 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 parks
to play in. The lawyers representing the government had hastened to assure
them that indeed they would and what's more, 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, the police, the bureaucracy, the courts. And not just answered,
but answered unambiguously, in bitter, brutal ways.''

``According to the Land Acquisition Act of 1894 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 the 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 - or let's say most small farmers - have as little use for money as
a Supreme Court judge has for a bag of fertilizer.''

I seriously doubt that any unbiased observer, even one unfamiliar with the
controversy surrounding the Sardar Sarovar project, and even one who has
not read her entire essay which provides the context and justification for
these remarks, would consider them to be ``scandalous'' or ``contumacious
violation'' or ``vicious stultification'' or ``vulgar debunking'', which
pollutes the ``pure stream of justice'' of the Supreme Court. But then,
that is the pronouncement of the highest court of the land. Who is to
question its wisdom?

A year later, on October 18, 2000, came the final judgment of the Supreme
Court on the Sardar Sarovar case by which the Narmada Bachao Andolan's
petition was virtually dismissed along with a gratuitous lecture extolling
the virtues of large dams, while making snide remarks against the NBA as
being an organisation opposed to the development of India. On December 13,
2000, the NBA held a demonstration outside the Supreme Court in which the
Court's judgment was criticised and denounced. Arundhati Roy attended the
Dharna as an observer and supporter of the NBA, though she did not make
any speech or raise any slogans.

In February 2001, the Supreme Court issued notice to Roy, Medha Patkar and
myself for Criminal Contempt of Court on the basis of a petition filed by
five lawyers who alleged that she along with Patkar and me had led this
demonstration, shouted vulgar slogans against the Court, and had assaulted
and threatened the petitioners.

The petition filed by the advocates had several fatal defects. First, the
petition did not disclose the addresses of the petitioners or the
respondents as required by the Supreme Court Rules. Roy's address was
mentioned as ``Booker prize winner'', Patkar's as, ``Leader NBA'', and
mine as ``Advocate Supreme Court''. The address of all the petitioners was
mentioned as ``Bar Library No. 1''. Second, the petition was signed by
only one of the petitioners though according to the rules it should have
been signed by all five of the petitioners. Third, the affidavit in
support of the petition was signed by only one of the petitioners though
it purports to be on behalf of two of them. Lastly, the petition did not
contain the consent of the Attorney-General or the Solicitor-General of
India, which is a mandatory requirement of the Contempt of Court's Act.
And that is quite apart from the absurdity of the charges of assault and
threats made in the petition against us. Even the local police station had
refused to register the FIR of the petitioners on these charges. Despite
these defects, the Court entertained the petition and notices were issued,
requiring Roy, Patkar and myself to be present in Court in person on every
hearing of the case.

In these circumstances, Roy in her affidavit in reply, while asserting her
right to be present at the demonstration and setting out the facts of what
happened there, also expressed her indignation at such a petition being
entertained at all by the Court. Her affidavit went on to say: ``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 criticised a recent judgement 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 considerable harm.''

On August 28, the Supreme Court dismissed the contempt petition of the
lawyers, holding that it was grossly defective and coupled with the fact
that even the police who were present at the dharna had refused to
register the FIR of the petitioners, and in view of the abominable
behaviour of the petitioners in Court, the allegations in the petition did
not inspire confidence. However, the Court went on to hold that the above
paragraphs of Roy's affidavit themselves amounted to contempt since they
imputed improper motives to the Court. The Court has thus directed the
issue of a second contempt notice on this basis!

It has always been accepted, even in pronouncements by the Supreme Court,
that the Court and its judgments can be subjected to strong, even
trenchant criticism. Is the same yardstick not available for comments on
the use or abuse of the Court's powers of contempt? In the case of
Arundhati Roy, the Court took offence at the fact that in her affidavit
she had questioned the discretion of the Court.

-------------------------------------------------------------------------
Part II
IN ITS order directing issue of the second contempt notice to Arundhati
Roy for her affidavit, the Supreme Court has said that she has ``imputed
motives to specific courts for entertaining litigation or passing orders
against her''. The Court holds that imputing motives to specific courts or
judges or orders is contempt. But it is a social and psychological reality
that all actions of all persons are actuated by some motive. And it would
be facile to believe that judges are a special species of mankind who are
only motivated by a desire to declare the law as it is. That is why judges
differ on their interpretation of law. Some are motivated by a desire to
mould the law to expand the rights of the downtrodden, while other may be
motivated by a desire to maintain the status quo. Some may even be
motivated by a desire to protect what they perceive to be their class
interest. And such motives may not always even be conscious to the judges.
But to say that judges only act with a motive to declare and enforce the
law as it is, is a fairy tale. And nowadays we do not believe in fairy
tales.

Moreover, there may be serious and honest difference of opinion between
perfectly reasonable persons as to whether a particular motive is laudable
or not. There are several cases pending in the Supreme Court where the
decision would determine whether India remains in the WTO or not. Such
cases would almost inevitably be decided on the personal views and
motivations of the judges on this issue. There would be honest difference
of opinion on whether such motive one way or the other is laudable or not.
But is it impermissible for civil society to discuss such motivations of
the Court or its judges? If it is made so by the exercise of the power of
contempt, it would stultify all meaningful public discussion and debate on
the functioning of one of the most important institutions of the state.
Such a state of affairs would discourage any improvement or change in the
institution and would be disastrous for democracy. No democratic civil
society can afford such a state of affairs for long, even if the Judiciary
tries to enforce it by using its powers of contempt.

Is it not possible that a court - even the Supreme Court - can abuse its
powers of contempt and use them against persons who criticise it or its
actions? Ironically, the very issue of the second contempt notice to Roy
itself validates her criticism of the Court in her affidavit. In fact, the
Court tacitly accepts the validity of her criticism by itself saying that
``almost every one of the rules framed by this Court have been violated'',
by the petition. What does a citizen make of the fact that the Court does
not proceed against the petitioners who misled it by filing a false and
concocted petition and who get up in Court and say without justification
that they have lost confidence in it and that the case should be
transferred to another Court.

There were two main reasons to confer the power on the courts to punish
citizens for contempt. First, that the courts should be armed with the
power to enforce their orders. Second, they should be able to punish
obstruction to the administration of justice, such as obstruction of and
threats to judges, jurors, litigants, lawyers, and witnesses. However,
gradually, over a hundred years ago, the courts in Britain, where the law
of Contempt was evolved by the judges themselves, expanded their own
powers to punish people for acts of what they called ``scandalizing the
court''. This was interpreted to include any act, which tended to impair
the dignity of the court and the judges. This was done on the basis that
any act that would injure public confidence in the courts would impair the
administration of justice. Any imputation of dishonesty to judges or their
judgments then came to be regarded by the courts as contempt. They even
went so far as to hold that even the truth of the imputation could not be
pleaded in defence.

Thus if one called a judge dishonest or a bribe-taker and had evidence to
prove it, the courts would not allow it on the ground that such an
imputation even if true would impair public confidence in the
administration of justice! Thus the courts came to regard it their legal
duty to punish and deter any attempt by a citizen to expose the rot in the
judicial system. Self-interest then came to be sanctified as a sacred
legal duty by the judicial expansion of the power of contempt. The Indian
courts, which inherited the British or Anglo Saxon Jurisprudence, adopted
the same principles.

The Contempt of Courts Act of 1971 merely gave legislative sanction to and
codified the law of contempt which had already been evolved by the Courts.
Thus contempt came to be defined as: ```Civil contempt' means willful
disobedience of any judgement, decree, direction, order, writ or other
process of a court or willful breach of an undertaking given to a court;
`Criminal Contempt', means the publication of any matter or the doing of
any other act whatsoever which - Scandalizes or tends to scandalize or
tends to lower the authority of, any court, or Prejudices, or interferes
or tends to interfere with, the due course of any judicial proceeding, or
Interferes or tends to interfere with, or obstructs or tends to obstruct,
the administration of justice in any other manner.''

It is the clause of ``scandalizing the court'' which has been used to
punish those who impugn the motives or the integrity of the courts or
judges. It is one jurisdiction where the issue before the court is between
the court and the citizen. And where the court sits in judgment over its
own cause. Clearly, the power is inherently highly prone to being abused.
It would be difficult for anyone to say that it has not been misused.

In recent years, the law of contempt has been liberalised in both the U.K.
and the U.S. In the U.K., the statute has been amended on the
recommendation of the Phillimore Committee to provide for truth as a
defence to a charge of contempt by scandalising. In the U.S., the courts
have evolved a more liberal standard of ``clear and present danger'' to
the administration of justice. Thus recently the New York Times
characterised the judgment of the U.S. Supreme Court on the recounting of
Florida votes in the recent Presidential elections as ``corrupt'' and one,
which ``stole the election''. But no action was initiated for contempt
because there was no clear and present danger to the administration of
justice.

For a long time now, the power of the courts to punish for contempt in
India have deterred free and frank debate and comment on the state of the
judicial system. But can it be said that it has really preserved public
confidence in the courts? Every citizen who has had the slightest brush
with the courts knows of the near complete collapse of the system. The
threat of contempt however deters most people from saying so openly.
However, every time that the court punishes anyone for ``scandalizing the
court'', that act does not enhance the dignity or the reputation of the
court. In fact, almost always, it has the opposite effect of making people
believe that the court has much to hide. Respect and dignity have to be
earned by ones behaviour and actions. They cannot be enforced by threats
of punishment.

Moreover, if such a power were necessary to preserve public confidence in
the Judiciary, then the same argument would hold good for preserving
confidence in the Government, its bureaucracy and its police. After all,
they too perform public functions, and it is equally important for their
efficacy that public confidence in them should also be preserved. But
then, it was realised that all such institutions can err and can also be
corrupted. That the best check against their degeneration was their
accountability to the people for which it was essential that people should
have the right to freely criticise them. And on the whole the public
respect for such institutions would depend on their behaviour and
performance.

Is it really necessary to enforce respect for the Judiciary without
scrutiny of its performance? Is there something particularly holy about
courts and judges that even a citizen who has proof of the fact and is
prepared to face action for civil and criminal defamation cannot accuse
them of dishonesty? Why is defamation (which is actionable in both civil
and criminal proceedings) not a sufficient safeguard to protect the
reputations of judges and courts, if that is considered sufficient for all
other classes or citizens? These are uncomfortable questions, but they
need to be answered. They need to be urgently addressed by the Judiciary
itself, the Government and above all by the citizens. For upon the answer
to these questions, depends the future health of our judicial system and
indeed of our Republic itself.