Issues of contempt and free speech

Print edition : November 10, 2001

The decision of a two-Judge Bench of the Supreme Court to press on with contempt proceedings against the writer Arundhati Roy on the basis of her reply to a notice raises troubling questions about the state of freedom of expression.

THE contempt proceedings against writer and activist Arundhati Roy in the Supreme Court took a new turn on October 29, when the Bench comprising Justices G.B. Pattanaik and Ruma Pal expressed its "dissatisfaction" over her reply filed in response to the notice issued to her in September. The court had issued the notice, after dropping contempt proceedings against Narmada Bachao Andolan (NBA) leader Medha Patkar and advocate Prashant Bhushan in a petition filed by some advocates for staging a dharna outside the Supreme Court on December 13, 2000, to protest against its judgment in the Sardar Sarovar case. The notice found three paragraphs in Roy's affidavit, filed on April 17, to be objectionable, and held her, prima facie, to have committed contempt.

Writer Arundhati Roy outside the Supreme Court on October 29.-M. LAKSHMAN

The Bench had inferred from these three paragraphs that she had imputed motives to specific courts for entertaining litigation or passing orders against her; she had accused courts of harassing her (of which the present proceedings had been cited as an instance) as if the judiciary were conducting a personal vendetta against her; and she had brought in matters that were not only not pertinent to the issues to be decided but had drawn uninformed comparisons to make statements about the court, which did not appear to be protected by the law relating to fair criticism (Frontline, September 28, 2001).

In her reply to the court filed on October 15 (published in full text here), Roy stood firm on the principles she has famously espoused. She gave no hint of any apology, which might have led the court to drop the proceedings against her. Instead, she defended her right to express what she thought of the court's attitude in admitting a flawed petition against three people who had publicly criticised its judgment in the Sardar Sarovar case.

She submitted that the court had misread and misunderstood her affidavit in general, and the three paragraphs in particular. She denied that she had attributed any improper motive to any particular Judge. She did not allege that the court wished to muzzle dissent; she only pointed out that the court created that impression by admitting a flawed petition.

Informed legal observers say that this part of Roy's reply should have been sufficient for the court to appreciate her intentions and drop the proceedings against her. However, the court's "dissatisfaction" with her reply suggests that it was against imputation of any 'motives', even if they are only implied and is not patently improper. The court, observers say, could have graciously owned up the Court Registry's lapses, if any, in admitting a notoriously flawed petition against Roy, Patkar and Prashant Bhushan.

Indeed, if the tone of the intervention application filed before the court on October 19 by 14 eminent persons, including former Lok Sabha Speaker Rabi Ray, playwright Vijay Tendulkar and a few academics and journalists, is any indication, the Supreme Court's fresh notice of contempt against Roy is fraught with grave implications for freedom of expression guaranteed in Article 19 of the Constitution. The Pattanaik-Ruma Pal Bench, however, rejected their plea to be impleaded them in the case, saying: "We do not need quantity to decide the matter. In a contempt matter the lis is between the contemnor and the court."

The applicants pointed out that the three paragraphs in Roy's affidavit constituted a bona fide and justified criticism of the court in its act of issuing a notice of contempt on an absurd and grossly defective petition. "It is the duty of every citizen to comment, even adversely, on the actions of a court if a person does it honestly and without malice," they asserted. They also submitted that they would have written the same paragraphs themselves, had they been issued similar contempt notices in these circumstances.

These citizens further told the court that the view that attribution of motives to a Judge or a court in any circumstances amounted to criminal contempt was incorrect, and had dangerous implications for the judiciary and any democratic society. "So long as a citizen attributes motives to a Judge or court without malice and in good faith, it cannot be an offence. If citizens are prohibited from discussing the conscious or subconscious motives which have made the courts and the Judges manning them act as they have done, on pain of contempt, it will render the entire discussion and analysis of the judiciary completely sterile," they said in their application.

These citizens also invited the court to proceed against them as well if it wished to pursue the matter against Roy, as they were placing themselves in the same position as Roy.

However, the Bench's rejection of their application has raised certain crucial issues. If the Bench had objected to the number ("quantity") of citizens who wanted to be impleaded as respondents in the matter, would the application of a smaller number of citizens have been allowed? After all, these 14 citizens are serious, sober and responsible persons from various walks of life agreeing with Roy's conduct in the contempt proceedings.

An application for intervention in an ongoing case is generally entertained by a court, if the interests of the applicants are likely to be affected by the outcome of the case. In the Roy case, it may be that the interests of every citizen who values freedom of expression will be affected by the court's verdict.

Ironically, R.K. Virmani, one of the five petitioners whose petition against Roy, Patkar and Prashant Bhushan was found to be grossly defective by the court, pressed his right of hearing in the matter before the Bench on October 29. In a characteristic re-play of his performance during the earlier hearing, he aggressively expressed his lack of confidence in the Bench, and pleaded for the transfer of the case to another Bench. The Bench had in its August 28 order admonished Virmani and other petitioners for their improper conduct during the hearing. On October 29, one of the Judges wanted to issue a notice of contempt against Virmani for apparently daring to repeat his misbehaviour before the court, but the Bench rejected Virmani's plea saying he had nothing to do with this case.

The Bench declined the request of Roy's senior counsel, Shanthi Bhushan, to refer the matter to a five-Judge Constitution Bench. However, it exempted the Booker Prize-winning writer from personal appearance in the court during the next hearing scheduled for January 2002.

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