Of contempt and legitimate dissent

Critics of the Supreme Court's Narmada dam judgment test the limits of legitimate dissent in a contempt case with far-reaching implications.

V. VENKATESAN SUKUMAR MURALIDHARAN in New Delhi

THE contempt of court case involving the Booker Prize winning novelist Arundhati Roy has invited the attention of another writer similarly honoured. Writing in The New York Times on August 7, Salman Rushdie suggested that the Supreme Court of India stood arraigned before the "court of world opinion" for the manner in which it was pursuing the charges. "Can it be," he asked, "that the Supreme Court of the world's largest democracy will reveal itself to be biased against free speech and be prepared to act at the bidding of a powerful interest group - the coalition of political and financial interests behind the Narmada Dam?"

Arundhati Roy, Narmada Bachao Andolan (NBA) leader Medha Patkar and advocate Prashant Bhushan received contempt notices for having organised a demonstration in December 2000 against the Supreme Court's majority judgment in the Narmada case. Widely criticised by development experts and water resource management specialists for being inattentive to facts and insensitive to the needs of the project affected, the majority judgment rendered last October cleared the way for raising the height of the Sardar Sarovar dam on the Narmada to its full proposed height.

In April, Roy, Patkar and Bhushan filed their affidavits in reply to the contempt notice. When hearings resumed in the case on August 2, the court was urged by Altaf Ahmad, Additional Solicitor-General of India and amicus curiae, to hold the respondents in contempt for the tone and tenor of their replies. Initiated on the basis of a complaint filed by five lawyers, the scope of the contempt case has now been enlarged to embrace the subsequent conduct of the respondents. And while the Supreme Court has reserved its ruling on the original complaint, it has retained the option to initiate fresh proceedings for contempt against Patkar and Roy in particular.

The Supreme Court began its action on the basis of a petition filed by R.K. Virmani, J.R. Parashar and three other lawyers. The substance of their complaint is that on December 13 last year, they found their access to the Supreme Court premises blocked by a noisy crowd outside the gates. Finding to their consternation that the Supreme Court had become the arena for a political demonstration, they berated the assembled crowd for an inappropriate choice of venue. Upon this, the petitions claimed, they faced grievous physical and verbal abuse and the possibility of life-threatening injuries. Medha Patkar allegedly exhorted the crowd to kill the lawyers. Prashant Bhushan, counsel for the NBA, allegedly tugged one of the petitioners by the hair and promised him that his next appearance in the Supreme Court premises would be his last. And Arundhati Roy allegedly sought to incite the crowd into violence by branding the Supreme Court a "thief" and the lawyer-petitioners as its unabashed "touts".

This supposed factual narration of the events of December was appended to the petition seeking contempt proceedings against Patkar, Roy and Bhushan. At the first hearing of the case on April 26, the complainants were warned that any element of falsehood in their petition would invite a term in jail. It also emerged that the local police station had not taken cognisance of the "first information report" made out by the complainants, and that no case had been registered or investigations conducted. This rather serious legal lacuna was again raised on August 3 by the Supreme Court Bench comprising Justices G.B. Pattanaik and Ruma Pal. One of the five lawyer-petitioners, Virmani, then flew into a paroxysm of simulated rage, expressing his loss of faith in the Bench, and reproaching it for not giving him an opportunity to explain his version of events.

It is an interesting sidelight to these events that Virmani was as recently as February appointed a government pleader by the Union Law Ministry. Yet by all accounts, the court-room demeanour of Virmani and his fellow-petitioners has been consistent with the tenor of the original complaint filed by them, with its mix of lurid fantasy and reckless concoction. At the last hearing, senior counsel Shanti Bhushan, who appeared for Patkar, pointed out that the respondents have denied all the accusations made against them. Further, he argued, the petition was seriously flawed in several respects and should not have been entertained by the court registry in the first place. It did not carry the addresses of the petitioners or respondents, and though it purports to represent five persons, it has been signed by only one. Lastly, Attorney-General Soli Sorabjee, whose concurrence is required by law for the Supreme Court to take up a petition for contempt, had declined to do so for reasons unspecified.

Despite these infirmities, the petition was entertained and notices were issued. In the circumstances, Shanti Bhushan felt that the strong tone of the affidavits filed by the respondents was fully warranted.

The Bench suggested that the technical flaws Shanti Bhushan had drawn attention to could often escape detection, since an average of 62 petitions were received in the Supreme Court every day. This did not constitute an adequate basis to condone the rather strong observations made by the respondents in their affidavits. For instance, the Bench considered a paragraph in Patkar's affidavit to be on the face of things contemptuous: "The superior courts have recently shown a disturbing tendency to use the power of contempt against persons who have been criticising the courts and their judgments. A judiciary which insulates itself from criticism by using the power of contempt, is bound to become insensitive to the people that it is meant to serve. This does not bode well for the future of our republic."

Most legal experts agree that Patkar's assertions fall within the bounds of legitimate dissent, as laid down by the Supreme Court itself in recent cases. Attorney-General Soli Sorabjee makes this subtly clear in his article in a recent anthology commemorating the golden jubilee of the Supreme Court (Supreme But Not Infallible, Oxford University Press, 2000, page 351): "It is a mistaken notion that an enforced silence by the threatened use of the contempt power leads to enhancement of the public image of the judiciary when corruption within some of its ranks is the talk of the town." Sorabjee proposes the amendment of the contempt law to provide for the defence of truth and the public interest. He also advocates imposition of stiff civil and criminal penalties upon a person who fails to substantiate his or her allegations.

Patkar's assertions seem unexceptionable in this context, since they do not impute motives to any judge and are in the nature of a generalised observation on the manner in which contempt powers have been invoked. Yet as the law stands she cannot claim truth as a defence. And the court is now seemingly tilting to the view that a mala fide has been read into its decision to issue notice for contempt. It posed a rather pointed question to Patkar: "Are we muzzling dissent?" Shanti Bhushan responded that this was his client's perception, and that if it amounted to contempt she was willing to serve her time in prison. He added for good measure that a perception was growing that the judiciary was far removed from social realities and had begun to use contempt powers to stifle criticism of its judgments.

The Supreme Court Bench had a wider range of objections in the case of Roy's affidavit. In a trenchant submission, Roy confessed herself rather mystified by the conduct of the Supreme Court. On the one hand the Chief Justice of India had refused to nominate a sitting judge to inquire into the proliferating scandals in defence procurement that the Tehelka tapes had laid bare. His plea then was that the Supreme Court was over-burdened with cases and could not afford any such diversions. Yet when it came to an "absurd, despicable, entirely unsubstantiated petition" urging the initiation of contempt proceedings against critics of the Narmada judgment, the Supreme Court showed a curious alacrity. This, said Roy, "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." In acting with such seeming sense of purpose upon a case that had failed to interest even the local police station, the Supreme Court, said Roy, "is doing its own reputation and credibility considerable harm."

Roy has had an earlier brush with the Supreme Court's sense of offended majesty. While hearing the NBA's public interest petition against the Sardar Sarovar Project, the Supreme Court Bench had taken note of certain rather sharp comments made by Roy in her 1999 essay, "The Greater Common Good" (Frontline, June 4, 1999). The court's order - rendered without giving her an opportunity to explain herself - then held out a warning to her to curb her "objectionable writings".

To the evident displeasure of the Bench hearing the case, Roy has in her affidavit characterised this admonition from the highest court as "insulting". Appearing on August 3 without the aid of counsel, Roy by all accounts was both straightforward and crystal clear in her response to this expression of judicial displeasure: "I find the issuance of notice insulting to me. I stand by my affidavit. If you think it is inappropriate and contemptuous, please proceed against me."

Justices Pattanaik and Pal assured Roy that though her credentials as a writer were not in question, she was not at liberty to impute motives to the court. Nor would she be justified in assuming that any judge harboured a "personal hysteria" against her. The sole purpose of the judges was to ensure respect for the rule of law.

Extended video recordings of the December 13 demonstration have since been circulating, as also interviews with the petitioners Parashar and Virmani, which call into question their credentials. The two lawyers, for instance, have admitted that they met the Supreme Court Registrar on the day of the demonstration, seeking some action from him. They were then referred to Chief Justice Dr. A.S. Anand and later to Solicitor-General Harish Salve. While the Registrar pleaded his inability to disperse the demonstrators, the Chief Justice, according to their own claims, "advised" the petitioners to meet Salve, who in turn, suggested that a complaint be filed which could be the basis for a contempt petition. If in pursuing this course of action the petitioners embellished the events of the day with generous infusions of fantasy, they could soon be called to account. Justices Pattanaik and Pal, in reserving judgment on their plea, have kept open the option of ordering an inquiry into the events of December 13.

There is universal agreement today among legal experts that fair criticism of judicial acts is not contempt. In a landmark case in 1971, the Supreme Court said that "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men." What borders on scandalisation of court is perhaps imputing motives or mala fide on the part of the court in the performance of its duties. Even these, however, may not constitute contempt, if there is no "clear and present danger" to the administration of justice. This is the most enlightened and liberal position on contempt, as laid down in various rulings in the United States and the United Kingdom.

Curiously, the judiciary in India seems immune to these winds of liberalism. In a recent case the Supreme Court sentenced S.K. Sundaram, a Madras High Court advocate, to six months' imprisonment, for questioning the authenticity of Chief Justice Anand's age testimonials. It later suspended the sentence for five years on the condition that the accused would refrain from repeating his offence. Sundaram gave the undertaking as required but died shortly afterwards. In this case, the court arrived at its verdict without the benefit of concluding its own probe into the document that was widely circulated, showing a discrepancy in the official records on the age of the Chief Justice.

The Madhya Pradesh High Court recently sentenced civil liberties activist and trade unionist Rajendra K. Sail to six months' imprisonment, for terming the acquittal of all the accused in the murder of Shankar Guha Niyogi as "rubbish". Four journalists who reported Sail's comment were also convicted along with him. All five contemners have since secured bail and appealed against their conviction in the Supreme Court.

The case of Vineet Narain, editor of www.kalchakra.org - an occasional investigative journal published from New Delhi - is also curious. Best known for his persistent litigation in the Jain hawala case, Narain faces contempt proceedings for publishing a story alleging that a judge of the Jammu and Kashmir High Court, Justice T.S. Doabia, had favoured the wife and mother-in-law of Chief Justice Anand in a land acquisition case in Madhya Pradesh. This refers to the year 1995, when Justice Doabia was serving on the Gwalior Bench of the Madhya Pradesh High Court.

Narain has sought to be excused from personal appearances at the Jammu and Kashmir High Court in Srinagar on grounds of personal safety. He has been unable to respond to summons from the Jammu Bench of the court because of the unsettled conditions there and the prospect of frequent disruptions and adjournments. As a final recourse he has questioned the jurisdiction of the High Court. But rather than deal with these questions, the High Court recently declared Narain a "proclaimed absconder" and ordered non-bailable arrest warrants against him. He now faces the threat of his property being confiscated and auctioned by the court and leads the precarious life of a fugitive. "Even during the hawala days, I had never faced such harassment, tension and persecution", he says. "The court's objective seems to be to harass and humiliate, rather than ascertain the truth".