Dubious justice

Print edition : September 15, 2001

The Supreme Court dismisses a baseless and mischievous contempt petition against Arundhati Roy, Medha Patkar and Prashant Bhushan, but orders a fresh contempt notice against the writer.

V. VENKATESAN in New Delhi (with editorial inputs)

THE law of contempt, a Supreme Court Bench comprising Justices Ruma Pal and G.B. Pattanaik suggested in a judgment delivered on August 28, has been framed in order to "shore up" respect for the law and of the law enforcing agencies, which is the foundation of civil society. Sanctions for "actual breaches of the law and for actions destroying that respect", they reasoned, are the ingredients of the law of contempt.

Arundhati Roy outside the Supreme Court on August 2.-

In the guise of criticising a judgment, what is impermissible, they warned, was challenging the motives of particular Judges. "To ascribe motives to a Judge is to sow the seeds of distrust in the minds of the public about the administration of justice as a whole and nothing is more pernicious in its consequences than to prejudice the mind of the public against Judges of the Court who are responsible for implementing the law," the Bench asserted in its judgment.

Holding this as the rationale for the contempt law, the Bench examined whether the dharna organised by the Narmada Bachao Andolan (NBA) on December 13, 2000 outside the Supreme Court to protest against its judgment in the case of the Sardar Sarovar Project constituted contempt as alleged by the advocate, J.R. Parashar, and four other petitioners.

The Bench held that conducting a dharna by itself might not amount to contempt, even though it did not approve of such an action in principle. But if in the process of holding such a demonstration, physical access to the courts is denied or the proceedings of the court are in any manner disrupted or hindered, a case of contempt could be made out since the action amounted to obstructing the administration of justice.

All these offences had been alleged, in shockingly flawed lawyers' petitions, against the three respondents - Prashant Bhushan, Medha Patkar and Arundhati Roy. Substantively as well as procedurally, the apex court found no merit whatever in the petition. In fact, the judgment narrates the strange story of the case making its way to the Bench despite its lack of elementary procedural validity and the slightest factual basis.

The Bench agreed with counsel for Patkar, Shanti Bhushan, that the petition was shabbily drafted and grossly defective procedurally. "In fact, almost every one of the Rules framed by this Court have been violated," the Bench found. Of the rules regulating contempt proceedings in the Supreme Court, one requires that the petition should contain the name, description and place of residence of the petitioner and the respondent. But each of the five persons named as petitioners gave the Supreme Court Bar Library or the Lawyers' Chamber as his address. The petition also failed to furnish the residential addresses of the respondents.

A more serious flaw, the Bench noted, lay in the matter of verification of the petition. Rule 4(b) requires that "the petition shall be supported by an affidavit." There are five named petitioners, yet all except Parashar failed to sign the petition or affirm it.

Under the rules the Court Registry can list a contempt matter for admission only if the Attorney General or Solicitor General has given consent. "In this case, the Attorney General had specifically declined to deal with the matter and it does not appear that any request was made to the Solicitor General to give this consent," the Bench noted. The petitioners had also not requested the Court to take suo motu cognisance of the alleged contempt. Even if they had done so, the Bench observed, "it is doubtful whether the Court would have acted on the statements of the petitioners," who had been "candid enough to have disclosed that the police had refused to take cognisance of their complaint."

CURIOUSLY, however, the Court absolved itself of any responsibility in the matter of the listing of the petition. The Judges held: "When a matter is listed before the Court, the Court assumes that the formalities in connection with the filing have been scrutinised by the Registry of this Court and that the proper procedure has been followed... There is no occasion for this Court to assume the task of the Registry before considering the merits of each matter. Had our attention been drawn to the procedural defects, we would have had no hesitation in rejecting the application in limine on this ground alone."

This in effect places the entire blame for the procedural lapses on the Supreme Court Registry. If so, what action has been taken against this shocking violation of procedure? The judgment has nothing to say on this crucial point. Inquiries made by this correspondent reveal that the Registry had indeed refused to list the petition before the Court in view of its multiple flaws, when first approached by the petitioners in December. Following this, the petitioners "mentioned" their grievance before Chief Justice A.S. Anand's court on January 15. As R.K. Virmani, one of the five petitioners, recalls, the Court directed them to approach Attorney General Soli Sorabjee. If consent was not obtained, they were advised to report back to the Court.

In response to an application filed before him on December 15, Sorabjee declined to deal with the matter since it involved Prashant Bhushan, but did not elaborate on the matter. The next recourse available was for the petitioners to approach Solicitor General Harish Salve. This was not done.

Despite this string of damning procedural lapses, the petition was listed and posted before the Court of Justices Pattanaik, B.N. Aggrawal and U.C. Banerjee on February 5 for preliminary hearing. The Court then directed Sorabjee to appear before it and explain his reluctance to be associated with the matter. The Attorney General put forward the plea it would be personally awkward for him to deal with a case in which a professional colleague was involved. However, he did orally concur with the petitioners that if the participants at the dharna had indeed raised the slogans that they were reported to have raised, then they would be liable for contempt proceedings. (In the event, the Supreme Court dismissed the substantive allegation that the three respondents had raised the slogans.) Since this response from the Attorney-General did not meet the formal requirement for issuing notice for contempt, the petitioners at this stage requested the Supreme Court to take suo motu action, as it was empowered under law to initiate.

On February 26, the Bench comprising Justices Pattanaik and Aggrawal ordered the issue of notice to Bhushan, Patkar and Roy to show cause why contempt proceedings should not be initiated against them on the substance of the petition filed before the Supreme Court. This did not amount to suo motu action and since the formal consent of the Attorney General had not been obtained, it was only reasonable to suppose that the Bench had waived this requirement. The procedural flaws were later to loom large in arguments before the Court. As the judgment rendered on August 28 concedes, the rules governing contempt proceedings are not mere technicalities. Rather, they are vital to ensuring that petitions filed for contempt should pass a minimal test of credibility.

The petition filed by Parashar, Virmani and their associates from the legal fraternity did not pass this basic qualifying test. It amounted, in other words, to an unnecessary imposition on the time and energy of the Supreme Court and also on the time and energy of the respondents. Certain legal experts believe that in the circumstances the appropriate course for the Court would have been to order an inquiry into the manner in which the petitioners got their petition listed by the Registry despite the glaring legal defects. This would have helped in reducing the claims on the Supreme Court's time through frivolous and unfounded petitions. It would also have helped in rendering elementary justice to the respondents.

THE writer, Arundhati Roy, now faces the prospect of another encounter with the Supreme Court's sense of offended majesty. She justifiably wonders, as an outsider to the Byzantine workings of the legal system, how she could have been expected to distinguish the Registrar's decision from that of the Court's. She told Frontline: "It is the responsibility of the Court as an institution to ensure that such frivolous petitions are not listed for hearing. I am glad that the Judges had the grace to accept my argument that the petition was frivolous. But I have been asked to appear before the court again - this amounts to saying: 'It is not my fault, but my secretary's, but you are nevertheless responsible'."

While hearing the case, the Bench had said that if the allegations were found to be untrue, the petitioners could be sent to jail for perjury. In its judgment the Bench has agreed that the petition was unfounded, and reserved its strongest strictures for its authors: "At the hearing, the petitioners addressed the Court in a manner which not only ill became their standing as Advocates of this Court but also belied their claims to be champions of this Court's dignity." But after all this, the Court mysteriously let the petitioners go without accounting for their actions.

Shockingly, the Bench has found reason to proceed further against Roy for the contents of her affidavit filed in response to the first notice. No action is being taken against Patkar because her comments on the Court's recourse to the power of contempt have been held to be "general in nature and may be construed as the expression of a perceived error in the decisions of superior Courts in their contempt jurisdiction." Further, she did not ascribe any "personal motive" to any particular Judge. The Court acknowledges that the notices issued to the respondents, under its directions, suffered from disqualifying flaws. For example, the notice issued to Patkar "did not specify the contumacious acts with which the respondent was charged in terms of Rule 6 read with Form I." In sum, the Court decided not to proceed against Patkar through applying the standards of fair criticism and also giving her "the benefit of the doubt." (What the doubt could have been in this case is left unclear.)

By these standards, the Bench should have found no ground to proceed against Roy. The petition filed by Parashar and his associates comically asserted that Judges of the Supreme Court were "pious constitutional authority and are not open for public and press to criticise, comment, shout defamatory and derogatory slogans against the verdict." This assertion has been decisively refuted in the judgment of the Pattanaik-Ruma Pal Bench: "Apart from the shouting of defamatory slogans, the rest of the sentence does not in fact correctly state the law... Courts like any other institution do not enjoy immunity from criticism as long as the criticism is fair, reasonable and temperate and does not accuse Judges of discharging their duties for improper motives or on extraneous considerations."

Holding that Arundhati Roy "appears to us, prima facie, to have committed contempt," the Bench has claimed: "She has 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 which do not appear to be protected by the law relating to fair criticism."

All this it has read into three paragraphs in her affidavit, which have been cited in the judgment.

The reasoning and justice behind the Court's ordering "notice in the prescribed form" to Roy asking her to show cause "why she should not be proceeded against for contempt for the statements in the three paragraphs of her affidavit" strike informed observers as passing strange. Why cannot her spirited response to the Court unjustly entertaining an invalid, frivolous and mischievous petition be interpreted as forthright and fair criticism of an intolerant exercise of contempt power by the Supreme Court? After all, the key point Roy makes in her affidavit and elsewhere concerns freedom of expression and not allowing anything that will diminish a writer's space.

Nowhere, in the three paragraphs cited, is there any suggestion that the judiciary, let alone particular Judges, are "carrying on a personal vendetta against her." Criticising the Supreme Court for "a disturbing willingness to issue notice" to the three respondents, for "a disquieting inclination... to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it," and for entertaining a baseless petition in a way that did the Court's "reputation and credibility considerable harm" is not tantamount to imputing "motives" to specific Judges "for entertaining litigation or passing orders against her." The Supreme Court's reading of the text seems inexplicable.

The larger point being made by informed observers is this. After conceding explicitly that the judiciary does not enjoy any immunity from fair and reasonable criticism, the Supreme Court seems to be exempting itself from the rule. Something needs to be done about this lack of balance in the constitutional scheme.

And it is not as though Roy is alone in her criticism of the intolerant ways of the higher judiciary in exercising contempt powers. For example, in a signed appeal to Members of Parliament to bring about significant amendments in the Contempt of Courts Act, several Delhi-based journalists called attention to "the growing tendency among the members of the judiciary to misuse the Contempt of Courts Act against those journalists who try to report their misconduct or corrupt practices." The journalists demanded removal of the "draconian" provisions of the Act so that the legislation could not be "misused as a shield to cover personal misconduct or corrupt practices of the members of the judiciary." The appeal highlighted the threat freedom of the press faced from this judicial "malpractice."

Implicitly, the Supreme Court now seems to have answered the criticism of its inconsistency and intolerance by disclaiming responsibility for the bad-in-law initiation of Court proceedings against Roy, Patkar and Bhushan. Its defence against this criticism seems to be that it is improper to "ascribe motives" to a particular Court for an action it was not responsible for. In response, Roy points out that she has never suggested that the Court was carrying on "a personal vendetta" against her, but has called attention to the grave danger the issue of this kind of notice poses to writers and journalists. She believes that "in the interface between freedom of expression and contempt powers, the Court should be extremely careful."

But the Supreme Court's defence against the criticism also requires, crucially, that the role of the Court Registry be separated and distinguished from that of the highest judicial body. This strains the credulity of every reasonably well-informed individual, who will endorse Roy's stand that the apex Court should take responsibility for any decision its Registry makes, especially in relation to a citizen's fundamental rights and freedoms.

Did Roy draw "uninformed comparisons" when she juxtaposed the Supreme Court's refusal to "allow a sitting judge to head the judicial enquiry into the Tehelka scandal" and its "disturbing willingness to issue notice" in the case of "an absurd, despicable, entirely unsubstantiated petition"? How would this not constitute fair comment under the circumstances? The Court is entitled to disagree with its critic, but not to proceed against her for contempt on this point. Roy explains that her intention in offering the comparison was to focus on the misuse of the process of the Court by the petitioners, to critique the prioritisation of judicial resources, and to underscore the point that there were more pressing matters that required the attention of the Court.

Roy believes that the Pattanaik-Ruma Pal judgment vindicates all that she said in her affidavit. "The Court issues notice to me on the basis of my affidavit. But it takes no action against the petitioners who had told the Court during the hearing that they had no confidence in it. On the contrary, I have clearly said I am not imputing motives to the Judges."

The internationally acclaimed writer makes ironic play with a Voltairean statement attributed to S.G. Tallentyre, which is widely recognised as a basic credo of political liberalism: "I disagree with what you say, but I will defend to the death your right to say it." The difference seems to be that the Supreme Court of India has agreed with what she has said, but denied her the right to say it.

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