Contempt Of Court?

IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION

In the matter of

CONTEMPT PETITION (CRL) NO. 10 OF 2001

(Suo motu Contempt Proceedings under Rule 3(a) of the Rules to regulateproceedings for Contempt of the Supreme Court 1975 initiated on the basis ofAffidavit dated 16.4.2001 filed on 17.4.2001 in Contempt Petition (Crl) No.2/2001 titled J.R. Parashar and Others Versus Prasant Bhushan and Others.)

Affidavit in Response of the respondent/noticee

I, Arundhati Roy, daughter of Mary Roy, resident of 2A Kautilya Marg, NewDelhi 110021, do hereby state and affirm as follows: That I have read andunderstood the contents of the Contempt Notice issued to me dated 5th September2001 and my reply to it is as under:

1. The Contempt Notice alleges that three paragraphs in my Affidavit dated16.4.2001 are grossly contemptuous, that they attribute improper motives to theCourt and therefore amount to Criminal Contempt of the Court as defined underSection 2(c) of the Contempt of Court Act read with Article 129 of theConstitution of India. In this particular instance I understand "CriminalContempt of the Court" to mean "the publication of any matter or thedoing of any other act whatsoever which scandalizes or tends to scandalize orlowers or tends to lower the authority of, any court."

The allegedly offending paragraphs from my affidavit are reproduced below:

"On the grounds that judges of the Supreme Court were too busy, theChief Justice of India refused to allow a sitting judge to head the judicialenquiry into the Tehelka scandal, even though it involves matters of nationalsecurity and corruption in the highest places.

"Yet, when it comes to an absurd, despicable, entirely unsubstantiatedpetition in which all the three respondents happen to be people who havepublicly - though in markedly different ways -questioned the policies of thegovernment and severely criticized a recent judgement of the Supreme Court, theCourt displays a disturbing willingness to issue notice.

"It indicates a disquieting inclination on the part of the court tosilence criticism and muzzle dissent, to harass and intimidate those whodisagree with it. By entertaining a petition based on an FIR that even a localpolice station does not see fit to act upon, the Supreme Court is doing its ownreputation and credibility considerable harm."

2. I submit that there has been a misreading and complete misunderstanding ofmy affidavit in general and of the above three paragraphs in particular. I havenot attributed any improper motive to any particular judge. I have not saidanything that scandalizes or tends to scandalize or lowers or tends to lower theauthority of the Court. I have not asserted as a fact that the Court wishes tomuzzle dissent. I have said that by admitting a flawed petition against threepeople who had recently and publicly criticised the Supreme Court judgement inthe Sardar Sarovar case, the Court creates this impression. Therefore, I said,by its own action, the Court is harming its credibility and reputation. In ademocracy, it is a citizen's duty to point this out.

3. If Supreme Court judges are too busy to be spared to head a judicialenquiry into a matter concerning national security and corruption in the highestplaces, it is fair and valid to assume that they are busy with matters of equal,if not greater importance.

4. It is for this reason that I was distressed that an already overburdenedCourt had time to entertain an obviously false and flawed petition such as theone filed by J.R Parashar and others (Crl No. 2/2001 titled J.R. Parashar andOthers Versus Prasant Bhushan and Others). In our affidavits in reply, MedhaPatkar, Prashant Bhushan, as well as I myself pointed out the reasons why, inour opinion, the petition was false, contained multiple flaws, was a deliberateattempt to mislead the Court and did not have the approval of the AttorneyGeneral which is mandatory in a Contempt of Court case.

5. Subsequently the Court itself in its order dated August 28th 2001, whiledismissing the petition, said that it violated "almost every one of theRules framed by this Court" and was "shabbily drafted, procedurallygrossly defective."

6. The order also says "Apart from the defective nature of the petition,the unexplained reluctance on the part of the four petitioners to affirm anaffidavit verifying the facts contained in the petition, the failure to evenattempt to obtain the consent of the Solicitor General and most importantly therefusal of the police station to record an FIR on the basis of the complaintlodged by the petitioner No.1 are telling circumstances against the case in thepetition. Admittedly, the police personnel were present at the time of theincident. Their refusal to record the FIR on the petition's complaint is,therefore, significant."

7. Addressing the issue of why such a petition was admitted by the Court inthe first place, the order says: "When a matter is listed before the Court,the Court assumes that the formalities in connection with the filing have beenscrutinized by the Registry of this Court that the proper procedure has beenfollowed as it is the duty of the Registry to scrutinise the petition to seewhether it is in order before placing it before the Court for consideration.There is no occasion for this Court to assume the task of the Registry beforeconsidering the merits of each matter. Had our attention been drawn to theprocedural defects, we would have had no hesitation in rejecting the applicationin limine on this ground alone." The Court appears to be as - if not more -outraged than the Respondents at the nature of the petition and the grosslydefective procedure by which it came to be admitted to the highest court in theland.

8. As an ordinary citizen, I cannot and could not have been expected to makea distinction between the Registry and the Court. In my eyes, the Court isresponsible for the functioning of its Registry. Together they decide theprioritization of judicial resources, together they decide which petitions areadmitted and which are not. For a common citizen, the Registry of the SupremeCourt is the threshold to Justice itself. If citizens cannot have faith in theproper functioning of the Registry, it is bound to undermine their faith in theCourt itself. Given the circumstances, it seems perfectly justifiable forsomeone in my position to wonder why such an obviously defective petition hadbeen admitted by the Court. It seemed perfectly appropriate to air my view thatin this particular instance, the Court, by allowing certain citizens to grosslyabuse its process in this way, creates the disturbing impression that there isan inclination 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 it meant to undermine the dignity of the Court. I was simplystating the honest impression that had formed in my mind.

9. Issuing a Criminal Contempt Notice may be a routine, everyday matter forthe Court. However, for an ordinary citizen who receives one, it involvesconsiderable travail and humiliation. To begin with, one has to engage lawyersand spend a great deal of time briefing them, and drafting affidavits. Hiringlawyers also involves a major expense. For a working person, being asked toschedule one's entire life around enforced court appearances, as though one is acommon criminal, is humiliating and damaging to one's professional life. It istherefore incumbent on the Court to see that a petition on the basis of whichNotice is issued, passes at least a minimum credibility test.

10. Other than the facts pertaining to the petition (Crl No. 2/2001 titledJ.R. Parashar and Others Versus Prasant Bhushan and Others), the manner in whichit was admitted, and the travails that receiving a Contempt Notice from theSupreme Court of India entails, there were some other salient facts present inmy mind when I filed my affidavit dated 16.4.2001 which will also explain thereasons for writing what I did.

11. In May 1999, my essay titled "The Greater Common Good" waspublished in Outlook and Frontline magazines. On 15th October1999, the Supreme Court made the following remarks against me: "Judicialprocess and institution cannot be permitted to be scandalized or subjected tocontumacious violation in such a blatant manner in which it has been done byher.... Vicious stultification and vulgar debunking cannot be permitted topollute the stream of justice.... We are unhappy at the way in which the leadersof the NBA and Ms Arundhati Roy have attempted to undermine the dignity of thecourt. We expected better behaviour from them."

The order also said "Whatever may be the motive of Ms Arundhati Roy, itis quite obvious that she decided to use her literary fame by misinforming thepublic and projecting in a totally incorrect manner how the proceeding relatingto Resettlement and Rehabilitation had shaped in the Court...."

12. I was not a party to the case on the Sardar Sarovar Project. The orderwas passed without giving me an opportunity to be heard and was therefore inviolation of the Principles of Natural Justice.

13. It is certainly true that I had (and continue to have) a differentopinion from that contained in the majority - and therefore operative -Judgement on the Sardar Sarovar issue. But so do millions of people in theworld, as did one of the Judges on that particular bench who wrote an admirable,dissenting judgement. "Vulgar debunking" and "viciousstultification" are strong words indeed to describe a difference ofopinion.

14. The Greater Common Good has been published and reprinted in severalcountries and several languages across the world. Each fact and figure has beenbacked up with notes and references and maps. So far no one has pointed out asingle factual error in the essay, nor have I been made aware of any instance ofdeliberate 'misinformation'. It was unjustified on the part of the court tosuggest that I deliberately 'decided' to use my 'literary fame' to misinform thepublic. A baseless comment like this does not behove the august offices of theApex Court.

15. This incident contributed in no small measure to the impression that Istated in my affidavit.

16. A person can perhaps be forced under duress to withdraw a statement, orapologize for stating an opinion. However, a person cannot be coerced intochanging his or her mind. That can only happen through persuasion. Theimpression I had of the Court's actions in this case would have been corrected,and in fact, completely dispelled had the Court done all or any of the followingthings:

a. Dismissed the petition at the initial stage, without issuing notice.

b. Ordered an enquiry into the functioning of the Registry to establish how such a 'procedural lapse' could have taken place.

c. Taken action against the Petitioners for filing a false case and deliberately attempting to mislead the Court.

17. Sadly, the events that occurred subsequent to the filing of my affidavithave done nothing to dispel an already unfortunate impression that has beencreated. The events are:

a. At each hearing, the presence of a large police force ensured that no members of the public were allowed into what is supposed to be a public courtroom.

b. At the hearing on 2nd August 2001, one of the petitioners, Shri R.K. Virmani, while attempting to avoid answering a question posed by one of the judges, stood up and shouted that he had lost faith in the sitting Bench and that he wanted the judges changed. This was a clear case of imputing improper motives and committing gross Contempt in the face of the Court. No action was taken against him.

c. Instead, based on a misreading of my affidavit, a Notice for Criminal Contempt of Court was issued to me on 5th September 2001.

d. A Press Report (Frontline September 28th 2001) by V.Venkatesan along with editorial inputs from Frontline's editor N.Ram, reveals that the Registry had indeed refused to list the petition before the Court in view of its multiple flaws. The article says that the Attorney General had been approached and that he had declined to deal with the matter. It goes on to say that the Petitioners then requested the Court to take suo motu action which the Court did not do. Finally, and inexplicably, without meeting any of the formal requirements, without passing even a minimal test of credibility, the petition was admitted and notice was issued directing the Respondents to appear in person before the Court.

If these facts are correct, they raise further questions about how thispetition came to be admitted to the Supreme Court.

18. I do not believe that the criticism of the Court or its process by anindividual, whoever that individual might be, can possibly lower the dignity ofan institution as powerful and venerable as the Supreme Court of India. If thecriticism is random and unfounded, it will automatically rebound on thereputation and credibility of the individual who leveled it. If, on the otherhand, the criticism is substantial or valid, the Court cannot hope to restoreits dignity by punishing or silencing the critic. Indeed, doing so will have theopposite effect. The dignity, the authority and the reputation of the Courtdepend entirely on the conduct of its judges and the quality of their judgements.The standing of an institution whose reputation has been built up on the basisof actions and judgements over more than half a century cannot be undermined bycriticism from an individual.

19. It has always been accepted that the judgements and actions of the courtscan be subjected to the most severe and trenchant criticism. Any seriousjurisprudential analysis of the evolution and development of law wouldnecessarily involve an attempt to understand why the Court has acted in themanner that it has. Highly respected judges and serious academic scholars havealways done this kind of analysis of the courts. Books like The Politics of theJudiciary by J.A.G. Griffith are learned attempts to understand how thepolitical views of individual judges have altered the course of theinterpretation of law. Studies like this would necessarily involve an attempt tounderstand and discuss the motivation of judges and how this has affected theirjudgements, and thus, the development of Law. If such discussion is prohibitedon pain of contempt it will render the entire analysis of the judiciarycompletely sterile.

20. Certain interpretations of Section 2(c) of the Contempt of Court Act tendto be inconsistent with the Right to Free Speech. Keeping in mind the reasonsmentioned in Para 8 above, in case of a conflict between the Law of Contempt andthe Right to Free Speech, the fair and judicious thing for the Court to do wouldbe to err on the side of protecting Free Speech.

With reference to the present case, it is submitted that this Court'sallegation that three paragraphs in my affidavit dated 16.4.2001 amount to acriminal offense under Section 2 (c) of the Contempt of Court Act is anincorrect interpretation of the law. Other individuals have made similar if notmore trenchant criticisms of the functioning of the Court and have not beenfound guilty of committing Contempt of Court: During a speech he gave at ameeting of the Bar Council in Hyderabad, Shri P. Shiv Shankar, then Minister ofLaw, Justice and Company Affairs said that because Judges had an"unconcealed sympathy for the 'haves"' they interpreted the expression"compensation" in the way they did. He went on to say"Anti-social elements i.e.: FERA violators, bride-burners and whole hordesof reactionaries have found their haven in the Supreme Court." A case forContempt of Court was filed against him. In the order by Justices SabyasachiMukherjee and S. Ranganathan J.J, dated April 15th 1988, the Law Minister wasabsolved of the charge of Contempt of Court.

21. Whimsical interpretations of the same Law leave citizens at the mercy ofindividual judges. If the three paragraphs of my affidavit dated 16.4.2001 aredeemed to be a criminal offense under section 2(c) of the Contempt of Court Act,it will have the chilling effect of gagging the Press and preventing it fromreporting on and analysing matters that vitally concern the lives of millions ofIndian citizens. This will be an unfortunate blow to one of the mostresponsible, most robust institutions of Indian democracy.

22. In a democracy, a Free Press is, or ought to be, as cherished aninstitution as a Fair Judiciary. A democracy must have an arena in whichcontending ideas and plural, competing and dissenting opinions can be freelyvoiced. The Free Press is the breathing machine - the lungs - of a democracy.There cannot be a democracy without a Free Press. There cannot be a truly FreePress if every single citizen's Right to Free Speech is not ardently protected,even when it relates to the actions of the Judiciary. The prospect of having toundergo a lengthy and exorbitant process of litigation, and the threat of aneventual prison sentence, will effectively restrain the Press from writing aboutor analysing the actions of the Judiciary. It will render the Judiciaryaccountable to no-one but itself. As I have said in my affidavit dated16.4.2001, if the judiciary removes itself from public scrutiny andaccountability, and severs its links with the society that it was set up toserve in the first place, it will mean that yet another pillar of Indiandemocracy will eventually crumble.