Arundhati Roy Contempt Case

In the Constitution of India the Supreme Court and the High Courts were seenas watchdog bodies, independent of the executive, and entrusted with the task ofseeing that all institutions function in accordance with the Constitution, andthe Rule of Law. They were assigned with powers not only to declare and setaside Executive acts of Government, but also to strike down (even declareunconstitutional) laws made by Parliament and the State Legislatures.

Over the years, the judiciary has expanded its own powers by creativeinterpretations of the Constitution, particularly Article 21 which guaranteesthe right to life. This has been interpreted by the Supreme Court to include theright to a healthy environment, to health, primary education, livelihood andshelter. Thus the Supreme Court has ordered the removal of ‘polluting’industries from Delhi, the total removal of industries from the vicinity of theTaj Mahal in Agra, the change of all commercial vehicles to CNG fuel, and thestoppage of all commercial activities in forest areas. All of these orders havehad far reaching effects, and have drastically affected the lives andlivelihoods of millions of common persons.

In recent years, and especially after the implementation of the StructuralAdjustment programme (the so called Economic Reforms programme), thejurisdiction of the Superior Courts has also been invoked to challenge theConstitutional validity of some elements of this programme. This includes –

• the Enron Case, which challenged the manner in which a privatized contract was awarded
• the Telecom case, which challenged the manner in which privatized telecom contracts were awarded
• the Balco case, which challenged the manner in which a government company was disinvested
• the Panna Mukta oilfields case, which challenged the manner of selling and privatizing oilfields owned by the Public sector

It is another matter that in none of these cases did the court interfere inthe governments decisions. Indeed, in some of these cases, such as the Balco andthe Telecom cases, the courts decisions were in fact used by the executive tolegitimize and promote its policies and programmes, already under attack byvarious public campaigns and mass movements.

Indeed the courts have often been seen to go beyond the issue brought beforeit, and have used the occasion to put their seal of approval on the programmesand policies of the government. This is what happened in the Balco disinvestmentcase where the Court went on to approve and applaud the entire disinvestmentpolicy of the government, and in the Sardar Sarovar Case where the court went onto extol the virtues of large dams, even in the absence of this issue beingbefore it.

Constitutionally endowed with enormous powers, the clout of the IndianCourts, has increased even further – they are in fact widely regarded as themost powerful courts in the world. Despite this, the Courts in India arevirtually unaccountable. In assuring their independence from the executive,impeachment was made the only method of accountability for judges in theConstitution. This has proved to be illusory as was demonstrated so starkly inthe V. Ramaswami case. At the same time, the Courts and judges have beenreluctant to evolve even an in-house system of self-monitored accountability.The result is a situation where they have enormous power without anyaccountability – a situation tailor-made for breeding sloth, arrogance andabuse of power.

It is against this background that one has to examine the right - indeed theneed - for free discussion and criticism of the role being played by the courtsin this country. In a democracy like ours where every institution is exercisingpower on behalf of the people, are the people not entitled to scrutinize,discuss and comment upon the actions of the judiciary? Obviously everyinstitution, including the judiciary can go wrong. Every institution, includingthe judiciary has its share of black sheep and corrupt judges. Even the ChiefJustice of India said so recently in Kerala.

The judiciary is peopled by judges who are human, and being human, they areoccasionally motivated by considerations other than an objective view of law andjustice. It would be foolhardy to contend that none of them, at least sometimes, are motivated by considerations of their own personal ideology,affiliations, predilections, biases, and indeed even by nepotistic and corruptconsiderations. In this day and age of common and frequent social interactionbetween politicians and judges, instances of judges being ‘spoken to’ onmatters pending before them in court are also not unheard of.

In stifling all criticism by the threatened exercise of the power ofcontempt, the issue in a democratic society is ultimately one of theaccountability of the judiciary itself. In order to stifle free speech andcomments on the Courts, even an occasional exercise of this power is enough todeter most persons from saying anything that might annoy their Lordships.Perhaps the most important reason for lack of reforms in the judiciary is thereluctance of the Press to write about and discuss the state of affairs withinit for fear of contempt.

It is for this reason that Arundhati Roy’s case is a test case in which theright of a citizen to criticize the Courts and discuss its motivations is pittedagainst the power of the Courts to punish for contempt. The decision in thiscase and the response of the people and the press to the decision will be adecisive moment in this struggle.