Contempt in question

The Supreme Court expresses its dismay over the "tone and tenor" of the averments made by Arundhati Roy, Medha Patkar and Prashant Bhushan in their affidavits filed in reply to the contempt charges against them.

THE affidavits filed in the Supreme Court by the Booker Prize winner Arundhati Roy, the Narmada Bachao Andolan (NBA) leader Medha Patkar and the NBA's counsel Prashant Bhushan in response to allegations made by a group of lawyers in a contempt petition against them (Frontline, March 30, 2001) have sparked a lively debate on what constitutes contempt of court and on the powers of the judiciary to punish those found guilty of contempt.

On April 23, Arundhati Roy, Medha Patkar and Prashant Bhushan appeared before a Bench comprising Justice G.B. Pattanaik and Justice U.C. Banerjee in connection with the contempt petition. The petitioners accused them of participating in a demonstration outside the Supreme Court premises on December 13, 2000 in protest against the court's judgment in the Sardar Sarovar case.

In separate affidavits, the respondents denied that they made any derogatory remarks against the court at the demonstration. They alleged that the petitioners, J.R. Parashar and others, had made ridiculous and concocted charges of their having resorted to threats and violence. They submitted that besides dismissing the petition, the court must initiate proceedings against the petitioners for perjury and contempt.

The Bench expressed its dismay over the "tenor" of the affidavits. "The charges made in the petition against the contemnors have been denied by them, and might not turn out to be contemptuous, but the tone and tenor of the averments made by them in the replies seemed to be objectionable," the Judges said. Adjourning the matter to August, the court asked Additional Solicitor-General Altaf Ahmed to suggest by then what course it should adopt in the proceedings.

In her affidavit, Arundhati Roy, who appeared in person without the assistance of a lawyer, expressed her distress that the court had thought it fit to entertain the petition and issue notice directing her and other respondents to appear personally before it on April 23 and continue to attend the court on all the days thereafter to which the case would be posted, until the final orders were passed. She wondered whether these enforced court appearances meant that in effect the punishment for the uncommitted crime had already begun. (The court subsequently dispensed with the need for personal appearance of the respondents until further orders.) "The lies, the looseness, the ludicrousness of the charges display more contempt for the apex court than any of the offences allegedly committed by Prashant Bhushan, Medha Patkar and myself," she said in the affidavit.

THE contempt charges are contained in a "First Information Report"(FIR) that the petitioners claimed they lodged in the police station at Tilak Marg, New Delhi, on December 14, 2000. In the "FIR" the petitioners alleged that the three persons had closed the gates of the Supreme Court and made remarks against the court. When the petitioners objected to this protest action, the FIR said, the alleged contemnors threatened them with violence. The Tilak Marg police station has not registered a case in this connection. Arundhati Roy said: "No policeman ever contacted me, there was no police investigation, no attempt to verify the charges, to find out whether the people named in the petition were present at the dharna, and whether indeed the incident described in the FIR (on which the entire contempt petition is based) occurred at all."

She denied that she ever tried to murder anybody, or incite anybody to murder anybody "in broad daylight outside the gates of the Supreme Court in full view of the Delhi Police," as alleged in the petition. She justified her participation in the protest saying that as a writer she was deeply interested in the people's perceptions of the functioning of one of the most important institutions in the country. She denied that she had raised the slogan, "Supreme Court bika hua hai" ("The Supreme Court has been sold out) as alleged in the petition. "I certainly did not 'command the crow that the Supreme Court of India is the thief and all these are this touts' (perhaps the petitioners meant 'crowd'?)," she said in her affidavit.

Arundhati Roy defended her right to participate in any peaceful protest meeting that she chose to, even outside the gates of the Supreme Court. She claimed that she had the right to use all her skills and abilities and all the facts and figures at her disposal to persuade people to her point of view. She warned: "If the court uses the contempt of court law, and allows citizens to abuse its process to intimidate and harass writers, it will have the chilling effect of interfering with a writer's imagination and the creative act itself. It will induce a sort of enforced, fearful self-censorship. It would be bad for law, worse for literature and sad for the world of art and beauty." She alleged that the petitioners' attempt to misuse the Contempt of Court Act and the good offices of the Supreme Court to stifle criticism and stamp out dissent struck at the very roots of the notion of democracy. She argued that a judicial dictatorship was as fearsome a prospect as a military dictatorship or any other form of totalitarian rule.

Above all, she claimed that the contempt notice indicated a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagreed 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," her affidavit said.

Similarly, Prashant Bhushan, through his counsel and former Union Law Minister Ram Jethmalani, described the allegations as false and concocted. He denied that he led the group of NBA protesters or shouted slogans against the court, or assaulted, abused or threatened the petitioner or his friends. In his affidavit, Prashant Bhushan answered the question - as raised by the petitioners - whether a practising lawyer, particularly one who was involved in a particular case, could subject the court to criticism. He said he had always believed and worked on the basis of the belief that a lawyer, especially one espousing public interest causes, was fully entitled to be involved in the causes that he espoused. While doing so, he had identified himself with the causes that he espoused in court. He had often participated in public campaigns on such issues and also written about them. He had not done so to influence the court but to educate people on the issues involved. He argued that being a lawyer, and thus having access to all the relevant facts, placed a much greater responsibility on him to inform and educate people about these issues.

In her affidavit, Medha Patkar, through her counsel, senior advocate Shanthi Bhushan, denied all the allegations against her as contained in the contempt petition, but justified the NBA's agitation on December 13 in front of the Supreme Court. She deplored the fact that the NBA's review petition against the Supreme Court's judgment in the Sardar Sarovar case was not even taken up by the court for consideration, and was dismissed more than four months after it was filed, without even giving the petitioners an oral hearing despite a strong dissent by Justice Bharucha in the judgment.

The object of the December 13 dharna was not to pressure the court into giving a favourable judgment on the review petition but to bring to the notice of the court and the people the plight of the displaced by the dam project and who would lose their lands and homes this monsoon without rehabilitation, Medha Patkar submitted. She expressed her belief that in a democratic society, where the court plays an important role in the lives of people, it should be influenced by exposure to such reality and to the plight of the poor and the downtrodden. She said she believed that the court often gave judgments in ignorance of the ground realities because of lack of exposure to them. The NBA always wanted the Judges to visit the valley and see the condition of the oustees themselves, but that did not happen. "So the people of the valley decided to come to the court to meet the Judges and explain to them what was happening in the valley. If such attempts to influence the Judges in this way is considered contempt by this court, then I plead guilty," she said in the affidavit.

Medha Patkar made it clear that she would continue to help the project-affected people in the valley raise their voices in protest against the system, even if she had to do so against the judiciary and the courts, even if she had to be punished for contempt for doing that.

Although strong doubts were expressed about the merit of the court entertaining the contempt petition, the Bench did not hear those arguments by the respondents and was not sure how to proceed further in the matter. The court held that two options were open to it - either drop the proceedings against the respondents in view of their denial of the allegations or hold an inquiry into the allegations. If the allegations were found baseless, the petitioners might be sent to jail, the Bench warned. But the Bench also made it clear that the respondents might be punished if they are found to have committed a fresh contempt with their affidavits.

Whatever view the court takes, it is clear that Prashant Bhushan, Arundhati Roy and Medha Patkar have immensely helped the cause of free debate and expression, by forcefully articulating in their affidavits the need for accountability of the judiciary and the limits of the contempt power that courts can invoke.