Sequence of Events

On 15^th January 2002, Justice G.B. Pattanaik and Justice R.P.Sethi of the Supreme Court of India heard arguments in the contempt case againstwriter Arundhati Roy. As on every previous occasion when this particular casehas come up for hearing, no visitors or journalists (other than officiallyaccredited Court Correspondents) were allowed entry into the court. TheRegistrar said that he had ‘orders from above’ in this case not to allowentry to anyone. The issue was raised with the Bench, but they did not think itnecessary to take any steps to rectify this serious breach of the fundamentalprinciple of open courtrooms and public justice, and the case proceeded to theexclusion of any independent observers or journalists. After a day long hearing,the court reserved judgement till 6^th March 2002, and asked Roy to bepresent in Court on that day. The maximum sentence for criminal contempt ofcourt is six months imprisonment.

Since the hearings have been held virtually in-camera, comment and publicopinion in the matter has been largely uninformed. This is an attempt tosummarise and clarify the significant issues in the case.

A distinction needs to be made first about two separate and quite distinctcontempt charges that are being referred to with regard to Arundhati Roy.

The first case for criminal contempt emerged out of the followingevents:

On 18^th October 2000 the Supreme Court delivered its final judgement in the Sardar Sarovar case, allowing construction to resume on the controversial dam on the Narmada River. The judgement itself created considerable controversy. Amongst its most vocal critics were Medha Patkar, leader of the Narmada Bachao Andolan (NBA), Prashant Bhushan, Counsel for the NBA, and the writer Arundhati Roy.
On 13^th December 2000 a few hundred people from the Narmada Valley staged a day long dharna (demonstration) outside the gates of the Supreme Court of India against the judgement in the Sardar Sarovar case. The dharna took place in the presence of several senior police officials, hundreds of police constables, press and media, and local supporters of the NBA. At dusk the demonstrators were peaceably arrested and removed by the Police.
On 14^th December 2000 five lawyers (led Jagdish Parashar & R.K.Virmani) attempted to file a First Information Report at the Tilak Marg Police Station alleging that Patkar, Roy, and Bhushan had led a demonstration outside the Supreme Court, shouted filthy slogans against the court, and had physically assaulted the petitioner lawyers and threatened to kill them. The police station did not see fit to register the case.
In January 2001 the same lawyers filed a petition in the Supreme Court for criminal contempt of court against Patkar, Roy, and Bhushan. Their petition was entertained, and the Court issued notice to all three, asking them to personally appear before it. Patkar, Roy, and Bhushan responded with individual affidavits denying the charges, and saying that the accusations were so ludicrous that even the local police station had not entertained them. They also pointed out the fact that the petition did not meet any of the conditions required by the Contempt of Courts Act. (It was not supported by a proper affidavit, it was not signed by the Petitioners, it did not contain the addresses of the Petitioners or the respondents, and most crucially, did not have the consent of the Attorney General or the Solicitor General.)

The judgement in this first case was delivered on 28^thAugust 2001 by Justice G B Pattanaik & Justice Ruma Pal, who dismissed thecontempt petition filed by Parashar et al., against Patkar, Roy, and Bhushan.They held that the petition was grossly defective and unsubstantiated and shouldhave not even been accepted by the Registry of the Court. The Court observedthat "almost every one of the Rules framed by the Court" had been violatedand that the petition was "shabbily drafted, procedurally grosslydefective." The court also observed that "apart from the defective nature ofthe petition, the unexplained reluctance on the part of the four petitioners toaffirm an affidavit verifying the facts contained in the petition, the failureto even attempt to obtain the consent of the Solicitor General and mostimportantly, the refusal of the police station to record an FIR on the basis ofthe complaint lodged by the petitioner No. 1 are telling circumstances againstthe case in the petition." The Court went on to say that the Registry oughtnot to have cleared the petition, and "Had our attention been drawn to theprocedural defects, we would have had no hesitation in rejecting the applicationin limini on this ground alone".

Extraordinarily enough, the matter did not end here.

While accepting that the case filed by the 5 lawyers ought never to have beenentertained, Justice G B Pattanaik and Justice Ruma Pal went on to say thatArundhati Roy’s affidavit-in-reply contained at least three paragraphs thatwere prima facie contemptuous. These were:

"On the grounds that judges ofthe Supreme Court were too busy, the Chief Justice of India refused to allow asitting judge to head the judicial enquiry into the Tehelka scandal, though itinvolves matters of national security and corruption in the highest places.

Yet when it comes to an absurd,despicable, entirely unsubstantiated petititon in which all the threerespondents happen to be people, who have publicly – though in markedlydifferent ways – questioned the policies of the government and severelycriticized a recent judgement of the Supreme Court, the Court displays adisturbing willingness to issue notice.

It indicates a disquietinginclination on the part of the Court to silence criticism and muzzle dissent, toharass and intimidate those who disagree with it. By entertaining a petitionbased 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 considerableharm."

The Court held that in these three paragraphs "She has imputed motives tospecific courts for entertaining litigation or passing orders against her. Shehas accused Courts of `harassing’ her (of which the present proceeding hasbeen cited as an instance) as if the judiciary were carrying out a personalvendetta against her. She has brought in matters which were not only notpertinent to the issues to be decided but has drawn uninformed comparisons tomake statements about the court which do not appear to be protected by the lawrelating to fair criticism".

On 5^th September 2001 a fresh contempt notice was issued toArundhati Roy.

In her reply to this notice, Roy pointed out the circumstances in which shesaid what she did in her affidavit. She pointed out that the absurd and grosslydefective nature of the first contempt petition against her had beenacknowledged by the Court itself. For a common citizen like her there is nodistinction between the court and its registry. She found it very strange thatthough the judges of the Supreme Court were obviously very busy, they stillfound time to entertain such a petition. She goes on to say that, in thecircumstances, "it seemed perfectly appropriate to air my view that in thisparticular instance, the court, by allowing certain citizens to grossly abuseits process in this way, creates a disturbing impression that there is aninclination on the part of the Court to silence criticism and muzzle dissent.This does not, and was not meant to impute motives to any particular judges. Itdoes not, nor was not meant to undermine the dignity of the court. I was simplystating an honest impression that had formed in my mind."

She said that her impression would have been corrected if the Court had doneany or all of the following things:

"a) Dismissed the petition without issuing notice.

b) Ordered an inquiry into the functioning of the Registryto establish how such a ‘procedural lapse’ could have taken place.

c) Taken action against the Petitioners for filing a false case anddeliberately attempting to mislead the Court."

Instead, she points out, no members of the public were allowed to enter thecourt in every hearing of the petition. Moreover, the Court took no actionagainst the petitioner, R.K. Virmani, who stood up and shouted without anyjustification that he had lost confidence in the judges hearing the matter andthat it should be transferred to another bench.

She drew attention to the contempt of court case against the former LawMinister Shiv Shankar who had, in a public speech, accused judges of having an"unconcealed sympathy for the haves" and who went on to say that "Antisocial elements ie. FERA violators, bride burners and whole hordes orreactionaries have found their haven in the Supreme Court" He was however notheld guilty of contempt and the Supreme Court held that though unfortunate,these were his views and he was entitled to air them.

Roy concluded by saying:

"Whimsical interpretations of the same law leave citizens at the mercy ofindividual judges. If the 3 paragraphs of my affidavit dated 16/4/01 are deemedto be a criminal offence, it will have the chilling effect of gagging the Pressand preventing it from reporting on and analyzing matters that vitally concernthe lives of millions of Indian citizens. This will be an unfortunate blow toone of the most responsible, robust institutions of Indian democracy. …Theprospect of having to undergo a lengthy and exorbitant process of litigation,and the threat of an eventual prison sentence, will effectively restrain thepress from writing about or analyzing the actions of the judiciary. It willrender the judiciary accountable to no one but itself. As I have stated in myaffidavit dated 16/4/01, if the judiciary removes itself from public scrutinyand accountability, and severs its links with the society that it was set up toserve in the first place, it will mean that another pillar of Indian democracywill eventually crumble".

On 15^th January, 2002 the second Contempt petition came up forfinal hearing before a bench of Justice Pattanaik and Justice Sethi.Appearing for Roy, Mr. Shanti Bhushan moved an application on her behalf askingJustice Pattanaik to excuse himself from the proceedings and transfer this caseto some other court, on the ground that since the allegation against Roy wasthat she had attributed motives to him (he being the judge who had issued noticein the first contempt petition), she had a reasonable apprehension of bias onhis part. Her application said that in hearing and deciding this contemptpetition, Justice Pattanaik would be sitting as a judge in his own cause. TheCourt however did not take kindly to this application. Justice Pattanaik saidthat this should have been raised earlier, and remarked that raising thisobjection was malafide.

Mr. Shanti Bhushan argued that Freedom of Speech was paramount under theIndian Constitution and could only be subjected to ‘reasonable’ restrictionsfor contempt of Court. It was universally accepted that the Courts and theirjudgements could be criticised in the most trenchant terms. Moreover what Royhad said was in reply to a court notice (unlike Shiv Shankar who gave a publicspeech). Voicing one’s perception in an affidavit in Court surely cannot besaid to be contempt he submitted.

Additional Solicitor General Altaf Ahmed, who appeared as amicus (friend ofthe Court) submitted that the Freedom of Speech was subject to the law ofcontempt. He said that Roy’s affidavit contained a blatant imputation of amotive on the court and was therefore destructive of the independence of thejudiciary. He said that in the past people who had "erred" hadtendered unconditional apologies which the court had accepted magnanimously.However, Roy he said, had been defiant, her current affidavit did not contain ahint of apology or remorse, and she had instead delivered a gratuitous lectureto the court. He argued that even after the Shiv Shankar case there had beenmany instances in which the Court had sentenced persons for imputing motives orotherwise scandalising the court.

Once again, a distressing sidelight of the proceedings was the gross andobnoxious behaviour in Court of R.K.Virmani, one of the lawyers who had filedthe original contempt petition. He began by shouting in Court, insisting that hebe allowed to intervene in these proceedings. Later he sat in the second row ofthe court and continued to pass loud and lewd comments about Shanti Bhushan,Altaf Ahmed and Roy. All this was being done very much within the hearing andnotice of the court. However again no action was taken against him.

This case and the manner in which it has been conducted raises a number ofimportant issues:

Are Indian citizens barred from commenting adversely on the court andexpressing their perceptions of the motivation of the court even if suchcomments are bonafide or justified? How can such a situation be countenanced ina democracy where the right of free speech is a fundamental right and everyinstitution is subject to public scrutiny and criticism?
Is the judiciary completely unaccountable? Can it arbitrarily declare allcriticism of it to be contempt of court, and then punish the critics by sittingas judges in their own cause?
Can the Court bar the press and members of the public from the hearing of aparticular case without assigning good reason?
On March 6^th 2002 in the Supreme Court of India, Contempt Petition(CRL) No. 10 of 2001, a verdict will be delivered by a Judge sitting in his owncause, after a series of hearings sealed from public scrutiny. On display willbe one of the ways in which the world’s largest democracy deals with itscritics.