Judgment reserved

As the Supreme Court concludes its hearings in the contempt case against writer Arundhati Roy and decides to deliver its judgment on March 6, some issues and questions come to the fore.

ON January 15, a Supreme Court Bench comprising Justices G.B. Pattanaik and R.P. Sethi heard arguments and reserved its judgment on the contempt proceedings against writer Arundhati Roy. The Bench asked her to be present in the court on March 6 to hear its pronouncement.

This case had arisen out of a judgment delivered on August 28, 2001 by a Bench comprising Justices Pattanaik and Ruma Pal in another contempt case against Arundhati Roy, Medha Patkar and Prashant Bhushan (Frontline, November 23, 2001). That case was initiated on the basis of a petition filed by five lawyers who alleged that the three persons had led a dharna outside the Supreme Court on December 13, 2000, against the court's judgment in the Sardar Sarovar Project case. The petitioners had alleged that the accused had shouted filthy slogans against the court and had also assaulted and threatened to kill them. Justices Pattanaik and Ruma Pal, in dismissing the petition, had found it grossly defective and procedurally flawed. However, the Bench found three paragraphs in Arundhati Roy's affidavit, filed in response to the notice issued to her, to be objectionable and held her, prima facie, to have committed contempt (Frontline, September 28, 2001).

In her reply to the notice, Arundhati Roy explained the circumstances that she thought justified the sentiments expressed in the impugned three paragraphs (Frontline, November 23, 2001). On October 29, Justices Pattanaik and Ruma Pal expressed their "dissatisfaction" with her reply and rejected a plea made by 14 eminent persons to be impleaded in the case in her defence. The Bench also declined a request made by counsel for Arundhati Roy, Shanthi Bhushan, to refer the matter to a five-member Constitution Bench.

On January 15, Shanthi Bhushan submitted to the court that freedom of speech was paramount under the Constitution and could only be subjected to "reasonable" restrictions in cases relating to contempt of court. He pointed out that even the second exception to the definition of criminal defamation in the Indian Penal Code (IPC) made it clear that "it is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of public functions, or respecting his character, so far as his character appears in the conduct and no further."

Shanthi Bhushan referred to the Supreme Court's judgment in Brahma Prakash vs. State of Uttar Pradesh (1953) in which it had held that "the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties would not be contempt if such reflection is made in exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice."

In a contempt case against former Union Law Minister P. Shiv Shankar (1988), the Supreme Court had held that even his remarks that "the court has an unconcealed sympathy for the haves" and had "become a haven for antisocial elements like smugglers, FERA (Foreign Exchange Regulation Act) violators and bride burners" were permissible. With such a precedent, Shanthi Bhushan asked, how could Arundhati Roy's impression based upon a number of circumstances be held to be in contempt? He said that her impression was one that any reasonable person including himself would have by the manner in which a grossly defective contempt petition was entertained by the court.

Additional Solicitor-General and amicus curiae Altaf Ahmed, on the contrary, submitted that the constitutional guarantee of freedom of speech was subject to the law of contempt. He alleged that Arundhati Roy's affidavit contained an imputation of a motive on the part of the court and hence was destructive of the independence of the judiciary. He claimed that she had delivered a gratuitous lecture to the court and her current affidavit in reply, filed on October 15, did not contain even a hint of apology or remorse. He argued that even after Shiv Shankar's case, there were several cases in which the court sentenced persons for imputing motives or otherwise 'scandalising' the court.

Whatever be the court's decision on March 6, it will be worthwhile to recall the Pattanaik-Ruma Pal judgment. While considering the case against Medha Patkar, the court held that she did not ascribe any personal motive to any Judge in her affidavit. "Her comments are general in nature and may be construed as the expression of a perceived error in the decisions of superior courts in their contempt jurisdiction," the court observed.

Has Arundhati Roy, as alleged in the judgment, imputed motives to specific courts for entertaining litigation or passing orders against her? Has she accused the courts of 'harassing' her in the sense of the judiciary carrying out a personal vendetta against her? In her reply, she pointed out that her view that there was an inclination on the part of the court to silence criticism and muzzle dissent was not meant to impute motives to any Judge. She stated that she had not asserted as a fact that the court wished to muzzle dissent. Insofar as Arundhati Roy did not make any "personal" allegation against any Judge, the substance of her first affidavit appeared to be similar to that of Medha Patkar's. Hence, the court's decision to issue notice to Arundhati Roy alone has created a sense of anguish among informed observers.

Rajeev Dhawan, senior advocate of the Supreme Court, said: "You cannot use the court's proceedings to criticise the court. But you can certainly bring to the court's notice an injustice including a sense of protest about the injustice of the proceedings. Her affidavit falls in the same genre as that of Medha Patkar. Roy's criticism is within the bounds on the basis of which Patkar's case was decided. It is for the court to take Roy's response in its context. The court has not done it in its August 28 judgment." It remains to be seen whether the court accepts Dhawan's reasoning.

ON January 15, the Bench comprising Justices Pattanaik and Sethi agreed that there was no imputation on the basis of facts in Arundhati Roy's first affidavit. Had she made a factual imputation against the court, Shanthi Bhushan's suggestion that it should be referred to the Constitution Bench could have been accepted. In fact, the question whether truth could be a defence in contempt proceedings was referred for consideration by a five-member Constitution Bench of the Supreme court in Dr. Subramanian Swamy vs. Ramakrishna Hegde (1990). The case is still pending.

However, Arundhati Roy is accused of making an imputation of motives against specific courts on the basis of her opinion. Can a bona fide expression of opinion, even if it is held to have imputed motives to a court, constitute contempt of court? Although the question has not yet been resolved, courts have tended to view even instances of bona fide expression of opinion with suspicion because of Clause 2 (c) (i) of the Contempt of Courts Act, which includes in its definition of criminal contempt any act which 'scandalises' any court.

Jurist and Member of Parliament Fali S. Nariman, in his C.L. Agarwal Memorial Law Lecture delivered in Jaipur on December 1, observed that this part of the law of contempt, though necessary, is a standing threat to freedom of expression. Nariman said that it left too much to the discretion of a particular Judge or Judges. Moreover, he said that at times decisions do give rise to a strange feeling that the status of the person who scandalises the court does perhaps affect the ultimate result.

Shiv Shankar was not the only influential member of the political class who did not face punishment for committing contempt of court. Former chairman of the Trade Fair Authority of India (now known as the India Trade Promotion Organisation), Mohammed Yunus, who was close to the Indira Gandhi family, had, while criticising a Supreme Court judgment in 1987, remarked that the Judge who delivered it had no right to be called either an Indian or a Judge. Yet the court did not find it necessary to issue suo motu notice of contempt to him after the petition filed by some citizens failed to secure the sanction of the Attorney-General.

However, politically unimportant litigants have been punished by the courts for contempt. Indira Jaising, senior advocate in the Supreme Court, says: "If you look at the profile of people whom the court convicts for contempt, it is always low-profile people. Whenever high-profile people are involved, the courts go soft on them. There is no consistency in the judgments of the Supreme court on contempt of court." Nariman, in his lecture, calls this a disturbing trend.

The case against Arundhati Roy has also raised the issue of recusal of a Judge from a case on an apprehension by a litigant of bias. On January 15, Shanthi Bhushan moved an application on behalf of Arundhati Roy asking Justice Pattanaik to recuse himself from the proceedings and transfer it to some other court. Shanthi Bhushan said that since Arundhati Roy was facing an allegation of imputing motives to Justice Pattanaik, he could not be a Judge in his own case. Moreover, having attracted criticism for issuing notices on a defective petition, he would not be the best person to judge whether that criticism amounted to contempt.

ARUNDHATI ROY'S application quoted the law laid down by the Supreme Court on the circumstances in which a Judge should recuse himself from the proceedings. In Ranjit Thakur vs. Union of India (1987), the Supreme Court held: "As to the tests of the likelihood of bias, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, 'Am I biased?'; but to look at the mind of the party before him." The Supreme Court also said that the participation of a Judge in a proceeding in which the litigant could entertain a reasonable apprehension of bias against him or her violates the principles of natural justice.

However, Justice Pattanaik said that any objection to his hearing the matter should have been raised earlier. When he was told that it was not known until January 14 that the case would be listed before him, he remarked that raising the objection at such a stage was mala fide. He said that the court would deal with Arundhati Roy's application in its judgment.

Whatever view the court takes on the recusal issue, it is pertinent to recall former Supreme Court Chief Justice M.N. Venkitachaliah's reference to U.S. Justice Frankfurter's view on it in Ranjit Thakur vs. Union of India. Justice Frankfurter, in the Public Utilities Commission of District of Columbia vs. Pallock case, said: "When there is ground for believing that... unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, Judges recuse themselves. They do not sit in judgment."

This much is clear. What happens on March 6, 2002 will be a test of the constitutional guarantee of freedom of speech and expression, qualified by the laying down of "reasonable restrictions" (which to be effective need to be prescribed by law under specified heads and must also meet judicial standards of reasonableness). Another question has been posed before the Indian constitutional system: how reasonable does the higher judiciary tend to be while interpreting the "reasonable restriction" placed on Article 19 (i) (a) under the head of contempt of court?