On March 6th 2002
Arundhati Roy & Criminal Contempt of the Supreme Court of India
On 15th January 2002, Justice G.B. Pattanaik and Justice R.P. Sethi of the Supreme Court of India heard arguments in the contempt case against writer Arundhati Roy. As on every previous occasion when this particular case has come up for hearing, no visitors or journalists (other than officially accredited Court Correspondents) were allowed entry into the court. The Registrar said that he had ‘orders from above’ in this case not to allow entry to anyone. The issue was raised with the Bench, but they did not think it necessary to take any steps to rectify this serious breach of the fundamental principle of open courtrooms and public justice, and the case proceeded to the exclusion of any independent observers or journalists. After a day long hearing, the court reserved judgement till 6th March 2002, and asked Roy to be present in Court on that day. The maximum sentence for criminal contempt of court is six months imprisonment.
Since the hearings have been held virtually in-camera, comment and public opinion in the matter has been largely uninformed. This is an attempt to summarise and clarify the significant issues in the case.
A distinction needs to be made first about two separate and quite distinct contempt charges that are being referred to with regard to Arundhati Roy.
The first case for criminal contempt emerged out of the following events:
- On 18th October 2000 the Supreme Court delivered its final judgement in the Sardar Sarovar case, allowing construction to resume on the controversial dam on the Narmada River. The judgement itself created considerable controversy. Amongst its most vocal critics were Medha Patkar, leader of the Narmada Bachao Andolan (NBA), Prashant Bhushan, Counsel for the NBA, and the writer Arundhati Roy.
- 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 against the judgement in the Sardar Sarovar case. The dharna took place in the presence of several senior police officials, hundreds of police constables, press and media, and local supporters of the NBA. At dusk the demonstrators were peaceably arrested and removed by the Police.
- On 14th December 2000 five lawyers (led Jagdish Parashar & R.K.Virmani) attempted to file a First Information Report at the Tilak Marg Police Station 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 station did not see fit to register the case.
- In January 2001 the same lawyers filed a petition in the Supreme Court for criminal contempt of court against Patkar, Roy, and Bhushan. Their petition was entertained, and the Court issued notice to all three, asking them to personally appear before it. Patkar, Roy, and Bhushan responded with individual affidavits denying the charges, and saying that the accusations were so ludicrous that even the local police station had not entertained them. They also pointed out the fact that the petition did not meet any of the conditions required by the Contempt of Courts Act. (It was not supported by a proper affidavit, it was not signed by the Petitioners, it did not contain the addresses of the Petitioners or the respondents, and most crucially, did not have the consent of the Attorney General or the Solicitor General.)
The judgement in this first case was delivered on 28th August 2001 by Justice G B Pattanaik & Justice Ruma Pal, who dismissed the contempt petition filed by Parashar et al., against Patkar, Roy, and Bhushan. They held that the petition was grossly defective and unsubstantiated and should have not even 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 Solicitor General and most importantly, the refusal of the police station to record an FIR on the basis of the complaint lodged by the petitioner No. 1 are telling circumstances against the case in the petition.” The Court went on to say that the Registry ought not to have cleared the petition, and “Had our attention been drawn to the procedural defects, we would have had no hesitation in rejecting the application in limini on this ground alone”.
Extraordinarily enough, the matter did not end here.
While accepting that the case filed by the 5 lawyers ought never to have been entertained, Justice G B Pattanaik and Justice Ruma Pal went on to say that Arundhati Roy’s affidavit-in-reply contained at least three paragraphs that were prima facie contemptuous. These were:
“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, though it involves matters of national security and corruption in the highest places.
Yet when it comes to an absurd, despicable, entirely unsubstantiated petititon 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 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 and credibility considerable harm.”
The Court held that in these three paragraphs “She has 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”.
On 5th September 2001 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 there is 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 goes on to say that, in the circumstances, “it seemed perfectly appropriate to air my view 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 not meant to undermine the dignity of the court. I was simply stating an honest impression that had formed in my mind.”
She said 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.”
Instead, she points out, no members of the public were allowed to enter the court in every hearing of the petition. Moreover, the Court took no action against the petitioner, 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 ie. FERA violators, bride burners and whole hordes or reactionaries have found their haven in the Supreme Court” 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 by saying:
“Whimsical interpretations of the same law leave citizens at the mercy of individual judges. If the 3 paragraphs of my affidavit dated 16/4/01 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 16/4/01, 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 the second Contempt petition came up for final hearing before a bench of Justice Pattanaik and Justice Sethi. Appearing for Roy, 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. Her application said that in hearing and deciding this contempt petition, Justice Pattanaik would be sitting as a judge in his own cause. The Court however did not take kindly to this application. Justice Pattanaik said that this should have been raised earlier, and remarked that raising this objection was malafide.
Mr. Shanti Bhushan argued that Freedom of Speech was paramount under the Indian Constitution and could only be subjected to ‘reasonable’ restrictions for contempt of Court. It was universally accepted that the Courts and their judgements 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 surely cannot be said to be contempt he submitted.
Additional Solicitor General Altaf Ahmed, who appeared as amicus (friend of the Court) submitted that the Freedom of Speech was subject to the law of contempt. He said 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. However, Roy he said, had been defiant, 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.
Once again, a distressing sidelight of the proceedings was the gross and obnoxious behaviour in Court of R.K.Virmani, one of the lawyers who had filed the original contempt petition. He began by shouting in Court, insisting that he be allowed to intervene in these proceedings. Later he sat in the second row of the court and continued to pass loud and lewd comments about Shanti Bhushan, Altaf Ahmed and Roy. All this was being done very much within the hearing and notice of the court. However again no action was taken against him.
This case and the manner in which it has been conducted raises a number of important issues:
Are Indian citizens barred from commenting adversely on the court and expressing their perceptions of the motivation of the court even if such comments are bonafide or justified? How can such a situation be countenanced in a democracy where the right of free speech is a fundamental right and every institution is subject to public scrutiny and criticism?
Is the judiciary completely unaccountable? Can it arbitrarily declare all criticism of it to be contempt of court, and then punish the critics by sitting as judges in their own cause?
Can the Court bar the press and members of the public from the hearing of a particular case without assigning good reason?
On March 6th 2002 in the Supreme Court of India, Contempt Petition (CRL) No. 10 of 2001, a verdict will be delivered by a Judge sitting in his own cause, after a series of hearings sealed from public scrutiny. On display will be one of the ways in which the world’s largest democracy deals with its critics.
For more information and copies of the court documents contact:
MD-4 Sah Vikas Society, 68 I.P. Extension, Delhi 110 092
Ph: 221 7084