A disturbing judgment

This is yet another case of arbitrary use of the contempt power by the Supreme Court.

SOLON, the Athenian statesman of the sixth century B.C., when asked how a people could preserve their liberties, said: "Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured." One hopes that the Indian public, and particularly the media and the Bar, will respond in such a spirit to the Supreme Court's order sentencing Arundhati Roy to a day's imprisonment and a fine of Rs.2,000. It can be said without fear of contradiction that no apex court in any democracy in the world, governed by the rule of law, would have held anyone guilty of contempt of court for what she had said in her affidavit.

The judgment should disturb people to the menace to press freedom posed by the present state of the law of contempt of court. This is not a solitary case of arbitrary use of the contempt power by the Supreme Court. In the last decade and a half, the Supreme Court has shown a touchiness which is not becoming in the highest court in the land, a selectivity in the application of the law - witness the exoneration of P. Shiv Shanker - a total indifference to the limits of its power and, with it, a cavalier disregard for the citizen's rights when charged with contempt. This is most unfortunate in a court which the Constitution not only empowers and enjoins to enforce the fundamental rights, but makes this right of the citizen to move the court itself a fundamental right (Article 32).

The Supreme Court's latest exercise of criminal contempt power is also dangerous for three reasons. It flouts the fundamental principle of jurisprudence that no person shall be put in peril on an ambiguity. The offence of criminal contempt of court by "scandalising the court" is notoriously vague. It is regarded as obsolete in Britain, the country of its origin. There has been no successful application of the charge since 1930. The offence is now "unimportant in practice," Eric Brundt, an authority, holds. In India its ambit is being widened. Secondly, it makes the offended judge a judge in his own cause. In the present case, Justice G.B. Pattanaik rejected a valid plea to recuse himself from the Bench which heard it (Justice R.P. Sethi and himself). He was a member of the very Bench (with Justice Ruma Pal) which had heard a petition for contempt against Arundhati Roy along with others allegedly for staying a dharna before the Court on December 13, 2000. (J.R. Parashar, Advocate & Ors. vs. Prashant Bhushan, Advocate & Ors. (2001) 6 Supreme Court Cases 735). Finally, there is little redress when the Supreme Court goes wrong. The only check is its own self-restraint or a writ against the Bench as in the Antulay case.

In this case, the allegations of shouting abusive slogans were rejected. The contempt petition was found to be defective and Medha Patkar was let off. Her statement that the courts had shown a disturbing tendency to use the power of contempt against persons who have been criticising the courts and their judgments was rightly treated as unobjectionable. "No personal motive has been ascribed... to any particular Judge." But then neither did Arundhati Roy. The Court's observation that Medha Patkar was being given "the benefit of the doubt" rejects an illiberal approach. This expression applies only when there is doubt as to the commission of the offence. In her case, there was no proof of guilt nor did one exist in regard to Arundhati Roy, either.

The standard of proof was clearly laid down by the Supreme Court in Mrityunjoy Das vs. Syed Habibur Rahaman (2001) 3 SCC 739.

Prosecution for criminal contempt is a criminal proceeding. The offence "shall have to be established beyond reasonable doubt" (p. 740, para 14).

One para out of the three in Arundhati Roy's affidavit for which notice was issued read thus: ".... 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 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."

In her judgment of October 29, 2001, Justice Ruma Pal said that this prima facie constituted contempt. How? She has imputed motives to specific courts for entertaining litigation or passing orders against her. She has accused courts of "harassing" her... as if the judiciary were carrying out a personal vendetta against her..." (emphasis added, throughout). This is demonstrably, factually wrong. For Arundhati Roy knew that proceedings had been taken against two others, as well - Prashant Bhushan, a lawyer held in high regard, and Medha Patkar, a respected public figure. Clearly, it was the Court which was being hypersensitive. The order of conviction on March 6 reflects that.

Compare her words to what Alan Dershowitz, a Professor of Law at Harvard, used about the U.S. Supreme Court in the election case in which majority of the court dishonestly upheld George W.Bush's election. His remarks on Chief Justice Renquist were abusive. The majesty of the U.S. Supreme Court survived intact.

Compare also what Arundhati Roy said in her affidavit with what Bernard Levin wrote in The Times (London) on February 7, 1991. He accused judges of arrogance and hypocrisy and of impairing public confidence in the judiciary by their own conduct.

In D.C. Saxena (Dr.) vs. Chief Justice of India (1996) 5 SCC 216, the Court held that the consumer is not entitled to prove his charges against the judge in respect of which he was hauled up for contempt. The charges made in that case were certainly intemperate and unedifying. But the judgement is sweeping and, worse, ill-considered. Previous rulings on truth as a valid defence were not considered. At page 248, para 42, Justice K. Ramaswamy said: "It would not be open to the contemnor to bring forward evidence or circumstances to justify or to show whether and how fairly imputations were justified because the judge is not before the court. The defence justification to an imputation would not, therefore, be available to the contemnor." Nor the defence of "fair comment." This was pure ipse dixit.

As the late H.M. Seervai pointed out, a person accusing Lord Bacon of taking bribes could be sentenced to imprisonment without being given an opportunity to prove his charge. In C.J. Miller's view, based on a plethora of authorities, "the defence should be available... It may prove to be an essential prerequisite to the compatibility of this aspect of contempt with article 10 of the European Convention on Human Rights" (freedom of speech). This fortifies the view that to bar truth as a defence is to render the "restriction" on free speech as not "reasonable" as Article 19(2) requires. Article 10 of the convention is akin to Article 19(1)(a) of our Constitution - the guarantee of freedom of speech and expression.

The Australian High Court has gone so far as to rule in 1992 that, in the words of Chief Justice Mason, "so long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice he or she is immune." He was elaborating on a classic case which the Court had decided in 1911 (King vs Nicholls 12 C LR 280) which Lord Justice Salmon approved in 1969 in his Report on the Law of Contempt in Britain as it affects Tribunals of Inquiry. He opined that if there is "just cause for challenging the integrity of a judge... it could not be contempt of court to do so. Indeed it would be a public duty to bring the relevant facts to light."

C.J. Miller's classic work Contempt of Court (Oxford University Press; pages 769, 125) cites cases galore which reveal that the trend everywhere else in the world is in the direction of greater freedom of speech. In India the Supreme Court is being consistently illiberal on the law of contempt of court. In Arundhati Roy's case the Court's attention was drawn to the fact that a Bench of three judges had asked that the issue of truth as a defence to contempt be referred to a Constitution Bench of five judges (Dr. Subramaniam Swamy vs. Ramakrishna Hegde (2000) 10 SCC 331). This plea was rejected.

It is time that the law is reviewed comprehensively by a committee comprising lawyers, publicists and persons in the media and its findings published for public edification. We must not despair of the Supreme Court's readiness to correct itself.