Of criticism and contempt

The significance of the Supreme Court's highly illiberal judgment convicting Arundhati Roy lies in the enhanced threat freedom of expression and freedom of the press face from the misuse of criminal contempt powers by the higher judiciary.

TO many observers, March 6, 2002 marks a landmark in the history of the judiciary in India and its approach to the question of the freedom of expression. On that day, a Supreme Court Bench comprising Justices G.B. Pattanaik and R.P. Sethi held Booker Prize winner Arundhati Roy guilty of criminal contempt of the Court and sentenced her to simple imprisonment for one day and imposed a fine of Rs.2,000. In case she failed to pay the fine, the Court said, she would have to undergo simple imprisonment for three months.

Arundhati Roy was in Delhi's Tihar Jail until the noon of March 7 and paid the fine, accepting the verdict as a price she had to pay for sticking to her perception about the Court's attitude towards the contempt proceedings against her. Even as she walked to freedom after undergoing the 'symbolic' sentence, the right to freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution, seemed to have suffered a serious blow.

The 76-page judgment, the relevant portions of which were read out by Justice Sethi on behalf of the Bench for nearly 20 minutes, will be remembered for its failure to make out a convincing case of contempt against Arundhati Roy. There was little doubt that the Court was offended by her affidavit questioning its action in issuing a notice against her on the basis of a petition that the Court itself found procedurally flawed and substantively baseless. However, in holding Arundhati Roy guilty of contempt, the Court seemed to have only vindicated the contents of her affidavit.

The March 6 judgment punished Arundhati Roy for having criticised the judgment given by Justices Pattanaik and Ruma Pal on August 28, 2001 on another contempt case against her. A petition filed by five lawyers had alleged that Arundhati Roy, senior lawyer Prashant Bhushan and Narmada Bachao Andolan (NBA) leader Medha Patkar shouted abusive slogans against the Court during a protest demonstration by the NBA outside the Court premises on December 13, 2000. Justices Pattanaik and Ruma Pal dismissed the charges against the three but found Arundhati Roy prima facie guilty of contempt of court for having made certain "derogatory" averments in her affidavit.

In her affidavit, Arundhati Roy had criticised the Court for displaying "a disturbing willingness to issue notice," on the basis of "an absurd, despicable, and entirely unsubstantiated petition," to her, Medha Patkar and Prashant Bhushan, who "happen to be people who have publicly... questioned the policies of the government and severely criticised a recent judgment of the Supreme Court" in the Sardar Sarovar Case. Arundhati Roy had inferred in her affidavit that the notice indicated "a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it." The affidavit drew this conclusion: "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 issued a suo motu notice to Arundhati Roy in this connection. In response, Arundhati Roy filed an affidavit denying that she had attributed any improper motive to any particular Judge and refuting the allegation that she had "scandalised" the authority of the judiciary. The notice was issued on the basis of a misreading of her first affidavit, she said. She had also stated that she could not be persuaded to change her impressions about the Court because the Court had neither ordered an inquiry into the functioning of the Registry to find out how a grossly defective petition against her was admitted, nor taken action against the petitioners for filing a false case.

In their judgment, Justices Pattanaik and Sethi said that they had no option but to convict her because she had committed the offence of criminal contempt of the Court by "scandalising its authority with mala fide intentions" and, further, had not shown "any repentance or remorse." Instead, they said, she had persistently and consistently tried to justify her action which, prima facie, was contemptuous of the Court. The Judges did not address her grievance about the Court's failure to order an inquiry into the role of the Registry and to take action against the petitioners. Many informed observers said that the judgment only vindicated Arundhati Roy's observation in her affidavit: "a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it."

In explaining why they had no option but to convict Arundhati Roy, the Judges expansively cited two factors on top of the lack of remorse on her part that explained why she had "landed herself in the dock of the court." The first factor was that she "drifted away from the path on which she was traversing by contributing to the Art and Literature." The second factor was that she had "resorted to all legal tactics and pretences" (sic) to frustrate the present proceedings against her. Even a critic of Arundhati Roy would find it difficult to believe how these factors had any bearing on her conviction for criminal contempt of court.

It is a generally accepted practice in legal circles that one cannot use the court's proceedings to criticise the court. But the Court issues notice to an alleged contemner with a view to providing an opportunity to the person to explain why action should not be taken against the person for an action that is prima facie contemptuous of the court. If the alleged contemner uses this opportunity to defend himself or herself - as Arundhati Roy has done through her first and second affidavits - the person cannot be held guilty for not showing any sense of remorse or for consistently choosing to justify his or her action. The very objective of the practice of issuing notice, as an instrument to ensure due process of justice, will be defeated if the Court were to suggest that the alleged contemner has no option but to apologise to the Court on receipt of a notice for contempt.

The bench expressed its agreement with the Supreme Court judgment in Sheela Barse vs Union of India & Other (1988 (4) SCC 226) acknowledging the broad right of a citizen to criticise the systemic inadequacies in the larger public interest. "It is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind though not, perhaps, always with the best of tastes; and speak perhaps with greater courage than care for exactitude. Judiciary is not exempt from such criticism. Judicial institutions are, and should be made, of stronger stuff intended to endure the thrive (sic) even in such hardy climate," the bench said. However, the bench stated that the parties to a case could not exercise the freedom and privilege to criticise the proceedings during the pendency of the case.

The distinction between criticism of the court's proceedings during the pendency of the case and after the disposal of the case has no basis in the Contempt of Courts Act. The parties to a case do not lose their right to criticise the Court because of the pendency of the proceedings. If there is no such right, then the parties to the title cases relating to the Babri Masjid complex at Ayodhya would not be able to criticise the inordinate delay in the disposal of the cases by the Allahabad High Court. Such criticism is not only legitimate but can have the effect of goading the court to expedite the hearing.

The real question then is whether a criticism of the court is scurrilous and mala fide and not whether it is made during the pendency of the proceedings of case. Moreover, in the case of public interest litigation, the petitioners may have a genuine need to comment on the merits or otherwise of the pending proceedings with a view to educating the public. In that case, they cannot not be punished under the Contempt of Courts Act on the grounds that the proceedings are pending.

Did Arundhati Roy make critical remarks about the Court with mala fide intentions? The bench concluded she did. However, to sustain this conclusion, the bench failed to provide any substantiation of the charge. Instead, it hurled a patently unfounded allegation against her: "She wanted to become a champion to the cause of the writers by asserting that persons like her can allege anything they desire and accuse any person or institution without any circumspection, limitation or restraint." Arundhati Roy's affidavit does not contain any such assertion. Nor do her comments elsewhere. But the bench went on to find that her attitude showed "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." Citing a proposition in law that the law punishes an archer no matter whether his arrow hits or misses the target, the Court concluded: "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."

DURING the last hearing of the case on January 15, Arundhati Roy moved an application through her counsel Prashant Bhushan asking Justice Pattanaik to recuse himself from the case and transfer it to some other court. Her plea was that as she was facing an allegation of having imputed motives to Justice Pattanaik, he could not be a Judge in the case. The bench rejected her plea on the grounds that it was made after the commencement of the proceedings, which was not bona fide. The bench also pointed out that she did not send a formal application to the court's Registry before the proceedings began. She filed a formal application to that effect only on January 23. A formal application for recusal has to be filed at least five days before the scheduled hearing.

Arundhati Roy's counsel had pleaded that they came to know that the case would be listed before Justice Pattanaik only two days prior to the hearing on January 15. Moreover, there are instances of courts using their discretion to entertain across-the-board applications for recusal by Judges when the respondents pleaded lack of sufficient time to move a formal application before the proceedings began. In Arundhati Roy's case, the Court used its discretion to reject her plea.

Did Arundhati Roy's apprehension have any basis? The bench held on March 6 that the notice was issued to her not for having attributed motives to a particular judge but for imputing motives to the Court in general as if the judiciary was carrying out personal vendetta against her. The judgment pointed out that the allegedly contemptuous part of her affidavit did not attribute any motive or make any allegation against any Judge. However, Justices Pattanaik and Ruma Pal had said on August 28 that Arundhati Roy had 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 this Court (emphasis added) which do not appear to be protected by the law relating to fair criticism," the bench had said. It was on the basis of this observation that a fresh notice of contempt was issued against Arundhati Roy.

The March 6 judgment, however, contradicted the observation made by Justice Pattanaik and Ruma Pal. "In the instant case, cognizance of the criminal contempt against the respondent has been taken by the Court, suo motu under Section 15 of the Act... When the action is at the instance of the Court, there is no question of any motive of and prejudice from any Judge," it said.

Section 14(2) of the Contempt of Courts Act (dealing with the procedure when a case of contempt involves the Supreme Court or a High Court) permits an alleged contemner to have the charge against him or her tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed. But no such provision is made under Section 15 of the Act, which deals with cognizance of criminal contempt in other cases. It is clear, therefore, that even though the second notice was issued to Arundhati Roy on the basis of the allegation that she had attributed motives to specific courts, the Court appears to have invoked Section 15 to make it appear that she had cast aspersions on the entire Court and therefore the benefit of seeking recusal by a Judge was not available to her. This appears to be a denial of natural justice to her, especially because she moved the application for recusal by Justice Pattanaik on the basis of the August 28 judgment.

Informed observers say the March 6 judgment has dangerous implications for the freedom of speech and expression, and for the freedom of the press, and that it needs to be expunged by a larger bench at least for the following assertions it has made:

*"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." (The bench made this assertion in the course of the discussion on the Shiv Shanker vs. P.N. Duda case to convey that the courts have to see "all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved," to ascertain "the good faith and the public interest" in any criticism of the court. The implication is that Shiv Shanker could escape punishment for casting aspersions on the courts because he was Law Minister and a former High Court judge and that ordinary citizens do not have that privilege.)

* "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 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 creative skill and imagination, we feel the ends of justice would be met if she is sentenced to symbolic imprisonment besides paying a fine of Rs.2,000." This comment is seen not only as a sample of the bench's gender insensitivity but also its tendency to humiliate the contemner even while holding her guilty of contempt and handing out a "symbolic" punishment.

The Arundhati Roy case is not the first or the only instance of the courts invoking the power to punish for criminal contempt. The Court's ruling might have got disproportionate attention as compared to similar cases because of Arundhati Roy's literary eminence. But the significance of the judgment lies not in the fact that it has punished a writer of world stature but in its implications for the freedom of expression of a determined citizen affirming her fundamental right to freedom of expression by criticising the judiciary in a forthright manner.

Before she was taken to jail, Arundhati Roy said: "I stand by what I said and I am prepared to suffer the consequences. The dignity of the court will be upheld by the quality of their judgments; the quality of their judgments will be assessed by the people of this country. The message is clear. Any citizen who dares to criticise the court does so at his or her peril. The judgment only confirms what I said in my affidavit. It is a sad realisation for me, because I feel the Supreme Court of India is an important institution and the citizens of India have high expectations from it."

Arundhati Roy was not alone in the sadness of this realisation. The NBA, which has defended her right to criticise the court, described the verdict as unjust. Hundreds of NBA activists from the Narmada valley courted arrest outside the Supreme Court. After their release they staged a dharna outside the Tihar Jail until Arundhati Roy was released on March 7. Outside the jail, she read out a poem: "The king, the minister and the court said it was night, though it was early morning."

The option of spending three more months in jail by refusing to pay the fine was available to Arundhati Roy. Many had advised her to pay the fine; others expressed the opinion that by refusing to pay the fine she could attract more attention to the cause she championed. The writer explained in a statement upon release that she decided that "paying the fine was the correct thing to do, because I have made the point I was trying to make. To take it further would be to make myself into a martyr for a cause that is not mine alone. It is for India's free Press to fight to patrol the boundaries of its freedom which the law of contempt, as it stands today, severely restricts and threatens. I hope the battle will be joined."

THE judgment evoked widespread protest. Prakash Karat, a Polit Bureau member of the Communist Party of India (Marxist), said the judgment was "against the interest of the working class" and that it was an attempt to "muzzle the right to criticise the Court's judgment". CPI general secretary A.B. Bardhan warned against the use of the contempt law to muzzle criticism of judicial decisions.

The Safdar Hashmi Memorial Trust (SAHMAT) issued a statement expressing its "dismay and pain" at the judgment. "The sentence is far from symbolic," it pointed out. The National Federation of Indian Women said that the judgment could have serious consequences for the rights of women. "The judgment has insulted women, saying it is showing leniency to Arundhati as she is a woman. Such stereotyping of women as the weaker sex is typical of male chauvinism," it said. The All India Democratic Women's Association criticised the bench's remark that Arundhati Roy got a lesser punishment because she was a woman as being "patronising in the extreme."

There were many prominent voices outside the country condemning the Indian Supreme Court's verdict. Over 300 members of the Italian Parliament wrote to President K.R. Narayanan, conveying the Italian people's appreciation of Arundhati Roy's political, moral and literary commitment. Noted American intellectual Noam Chomsky expressed his great admiration for the Indian writer's courage. In a message from the United States, a group of well-known writers and film personalities wrote to the Indian President describing the Arundhati Roy case as "a vital test for India" and urging him to reject the charges against her.

At a press conference in New Delhi soon after her release from the jail, eminent editors, journalists and activists highlighted that the intolerance demonstrated by the higher judiciary, and specifically the misuse of criminal contempt powers, have become a constraint on, and threat to, freedom of speech and expression and freedom of the Press. References were made to the exaggerated sense of insecurity within the higher judiciary. "I never thought the judiciary is such an endangered institution. This is not the common perception," said N. Ram, Editor, Frontline, referring to a sentence in the judgment that asserted that "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."

Ram suggested, on the basis of a resolution passed at a recent seminar on contempt of court in New Delhi, that Parliament should amend the Contempt of Courts Act to safeguard freedom of speech and expression so that "no criticism of the Court however severe and no imputation against a Judge or the judiciary will constitute contempt of court unless it is shown the imputation was baseless and mala fide."

The speakers said that the higher judiciary had increasingly become intolerant of the vigorous exercise of freedom of expression. It was time to "clip the wings of the judiciary" insofar as its power to punish for criminal contempt was concerned, they said.

Vinod Mehta, Editor, Outlook, suggested that the status of the last "holy cow" left in the system should be ended and more people should speak up in the face of the threat that they would go to jail for "scandalising the Court".

If that happens, Arundhati Roy's day in Tihar Jail will perhaps not be in vain.