Arundhati Roy case; Roy's statement

http://www.hinduonnet.com/fline/fl1906/19060270.htm

Frontline (India) March 16 - 29, 2002

Of criticism and contempt

The significance of the Supreme Court's highly illiberal judgment convicting
Arundhati Roy lies in the enhanced threat freedom of expression and freedom
of the press face from the misuse of criminal contempt powers by the higher
judiciary. 


V.VENKATESAN 
in New Delhi 

To many observers, March 6, 2002 marks a landmark in the history of the
judiciary in India and its approach to the question of the freedom of
expression. On that day, a Supreme Court Bench comprising Justices G.B.
Pattanaik and R.P. Sethi held Booker Prize winner Arundhati Roy guilty of
criminal contempt of the Court and sentenced her to simple imprisonment for
one day and imposed a fine of Rs.2,000. In case she failed to pay the fine,
the Court said, she would have to undergo simple imprisonment for three
months.

Arundhati Roy was in Delhi's Tihar Jail until the noon of March 7 and paid
the fine, accepting the verdict as a price she had to pay for sticking to
her perception about the Court's attitude towards the contempt proceedings
against her. Even as she walked to freedom after undergoing the 'symbolic'
sentence, the right to freedom of speech and expression, guaranteed by
Article 19(1)(a) of the Constitution, seemed to have suffered a serious
blow. 

The 76-page judgment, the relevant portions of which were read out by
Justice Sethi on behalf of the Bench for nearly 20 minutes, will be
remembered for its failure to make out a convincing case of contempt against
Arundhati Roy. There was little doubt that the Court was offended by her
affidavit questioning its action in issuing a notice against her on the
basis of a petition that the Court itself found procedurally flawed and
substantively baseless. However, in holding Arundhati Roy guilty of
contempt, the Court seemed to have only vindicated the contents of her
affidavit. 

The March 6 judgment punished Arundhati Roy for having criticised the
judgment given by Justices Pattanaik and Ruma Pal on August 28, 2001 on
another contempt case against her. A petition filed by five lawyers had
alleged that Arundhati Roy, senior lawyer Prashant Bhushan and Narmada
Bachao Andolan (NBA) leader Medha Patkar shouted abusive slogans against the
Court during a protest demonstration by the NBA outside the Court premises
on December 13, 2000. Justices Pattanaik and Ruma Pal dismissed the charges
against the three but found Arundhati Roy prima facie guilty of contempt of
court for having made certain "derogatory" averments in her affidavit.

In her affidavit, Arundhati Roy had criticised the Court for displaying "a
disturbing willingness to issue notice," on the basis of "an absurd,
despicable, and entirely unsubstantiated petition," to her, Medha Patkar and
Prashant Bhushan, who "happen to be people who have publicly... questioned
the policies of the government and severely criticised a recent judgment of
the Supreme Court" in the Sardar Sarovar Case. Arundhati Roy had inferred in
her affidavit that the notice indicated "a disquieting inclination on the
part of the Court to silence criticism and muzzle dissent, to harass and
intimidate those who disagree with it." The affidavit drew this conclusion:
"By entertaining a petition based 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 considerable harm."

The Court issued a suo motu notice to Arundhati Roy in this connection. In
response, Arundhati Roy filed an affidavit denying that she had attributed
any improper motive to any particular Judge and refuting the allegation that
she had "scandalised" the authority of the judiciary. The notice was issued
on the basis of a misreading of her first affidavit, she said. She had also
stated that she could not be persuaded to change her impressions about the
Court because the Court had neither ordered an inquiry into the functioning
of the Registry to find out how a grossly defective petition against her was
admitted, nor taken action against the petitioners for filing a false case.

In their judgment, Justices Pattanaik and Sethi said that they had no option
but to convict her because she had committed the offence of criminal
contempt of the Court by "scandalising its authority with mala fide
intentions" and, further, had not shown "any repentance or remorse."
Instead, they said, she had persistently and consistently tried to justify
her action which, prima facie, was contemptuous of the Court. The Judges did
not address her grievance about the Court's failure to order an inquiry into
the role of the Registry and to take action against the petitioners. Many
informed observers said that the judgment only vindicated Arundhati Roy's
observation in her affidavit: "a disquieting inclination on the part of the
Court to silence criticism and muzzle dissent, to harass and intimidate
those who disagree with it."

In explaining why they had no option but to convict Arundhati Roy, the
Judges expansively cited two factors on top of the lack of remorse on her
part that explained why she had "landed herself in the dock of the court."
The first factor was that she "drifted away from the path on which she was
traversing by contributing to the Art and Literature." The second factor was
that she had "resorted to all legal tactics and pretences" (sic) to
frustrate the present proceedings against her. Even a critic of Arundhati
Roy would find it difficult to believe how these factors had any bearing on
her conviction for criminal contempt of court.

It is a generally accepted practice in legal circles that one cannot use the
court's proceedings to criticise the court. But the Court issues notice to
an alleged contemner with a view to providing an opportunity to the person
to explain why action should not be taken against the person for an action
that is prima facie contemptuous of the court. If the alleged contemner uses
this opportunity to defend himself or herself - as Arundhati Roy has done
through her first and second affidavits - the person cannot be held guilty
for not showing any sense of remorse or for consistently choosing to justify
his or her action. The very objective of the practice of issuing notice, as
an instrument to ensure due process of justice, will be defeated if the
Court were to suggest that the alleged contemner has no option but to
apologise to the Court on receipt of a notice for contempt.

The bench expressed its agreement with the Supreme Court judgment in Sheela
Barse vs Union of India & Other (1988 (4) SCC 226) acknowledging the broad
right of a citizen to criticise the systemic inadequacies in the larger
public interest. "It is the privileged right of the Indian citizen to
believe what he considers to be true and to speak out his mind though not,
perhaps, always with the best of tastes; and speak perhaps with greater
courage than care for exactitude. Judiciary is not exempt from such
criticism. Judicial institutions are, and should be made, of stronger stuff
intended to endure the thrive (sic) even in such hardy climate," the bench
said. However, the bench stated that the parties to a case could not
exercise the freedom and privilege to criticise the proceedings during the
pendency of the case.

The distinction between criticism of the court's proceedings during the
pendency of the case and after the disposal of the case has no basis in the
Contempt of Courts Act. The parties to a case do not lose their right to
criticise the Court because of the pendency of the proceedings. If there is
no such right, then the parties to the title cases relating to the Babri
Masjid complex at Ayodhya would not be able to criticise the inordinate
delay in the disposal of the cases by the Allahabad High Court. Such
criticism is not only legitimate but can have the effect of goading the
court to expedite the hearing.

The real question then is whether a criticism of the court is scurrilous and
mala fide and not whether it is made during the pendency of the proceedings
of case. Moreover, in the case of public interest litigation, the
petitioners may have a genuine need to comment on the merits or otherwise of
the pending proceedings with a view to educating the public. In that case,
they cannot not be punished under the Contempt of Courts Act on the grounds
that the proceedings are pending.

Did Arundhati Roy make critical remarks about the Court with mala fide
intentions? The bench concluded she did. However, to sustain this
conclusion, the bench failed to provide any substantiation of the charge.
Instead, it hurled a patently unfounded allegation against her: "She wanted
to become a champion to the cause of the writers by asserting that persons
like her can allege anything they desire and accuse any person or
institution without any circumspection, limitation or restraint." Arundhati
Roy's affidavit does not contain any such assertion. Nor do her comments
elsewhere. But the bench went on to find that her attitude showed "her
persistent and consistent attempt to malign the institution of the judiciary
found to be the most important pillar in the Indian democratic set-up."
Citing a proposition in law that the law punishes an archer no matter
whether his arrow hits or misses the target, the Court concluded: "The
respondent is proved to have shot the arrow, intended to damage the
institution of the judiciary and thereby weaken the faith of the public in
general and if such an attempt is not prevented, disastrous consequences are
likely to follow resulting in the destruction of rule of law, the expected
norm of any civilised society."

During the last hearing of the case on January 15, Arundhati Roy moved an
application through her counsel Prashant Bhushan asking Justice Pattanaik to
recuse himself from the case and transfer it to some other court. Her plea
was that as she was facing an allegation of having imputed motives to
Justice Pattanaik, he could not be a Judge in the case. The bench rejected
her plea on the grounds that it was made after the commencement of the
proceedings, which was not bona fide. The bench also pointed out that she
did not send a formal application to the court's Registry before the
proceedings began. She filed a formal application to that effect only on
January 23. A formal application for recusal has to be filed at least five
days before the scheduled hearing.

Arundhati Roy's counsel had pleaded that they came to know that the case
would be listed before Justice Pattanaik only two days prior to the hearing
on January 15. Moreover, there are instances of courts using their
discretion to entertain across-the-board applications for recusal by Judges
when the respondents pleaded lack of sufficient time to move a formal
application before the proceedings began. In Arundhati Roy's case, the Court
used its discretion to reject her plea.

Did Arundhati Roy's apprehension have any basis? The bench held on March 6
that the notice was issued to her not for having attributed motives to a
particular judge but for imputing motives to the Court in general as if the
judiciary was carrying out personal vendetta against her. The judgment
pointed out that the allegedly contemptuous part of her affidavit did not
attribute any motive or make any allegation against any Judge. However,
Justices Pattanaik and Ruma Pal had said on August 28 that Arundhati Roy had
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 (emphasis added)
which do not appear to be protected by the law relating to fair criticism,"
the bench had said. It was on the basis of this observation that a fresh
notice of contempt was issued against Arundhati Roy.

The March 6 judgment, however, contradicted the observation made by Justice
Pattanaik and Ruma Pal. "In the instant case, cognizance of the criminal
contempt against the respondent has been taken by the Court, suo motu under
Section 15 of the Act... When the action is at the instance of the Court,
there is no question of any motive of and prejudice from any Judge," it
said. 

Section 14(2) of the Contempt of Courts Act (dealing with the procedure when
a case of contempt involves the Supreme Court or a High Court) permits an
alleged contemner to have the charge against him or her tried by some Judge
other than the Judge or Judges in whose presence or hearing the offence is
alleged to have been committed. But no such provision is made under Section
15 of the Act, which deals with cognizance of criminal contempt in other
cases. It is clear, therefore, that even though the second notice was issued
to Arundhati Roy on the basis of the allegation that she had attributed
motives to specific courts, the Court appears to have invoked Section 15 to
make it appear that she had cast aspersions on the entire Court and
therefore the benefit of seeking recusal by a Judge was not available to
her. This appears to be a denial of natural justice to her, especially
because she moved the application for recusal by Justice Pattanaik on the
basis of the August 28 judgment.

Informed observers say the March 6 judgment has dangerous implications for
the freedom of speech and expression, and for the freedom of the press, and
that it needs to be expunged by a larger bench at least for the following
assertions it has made:

* "All citizens cannot be permitted to comment upon the conduct of the
courts in the name of fair criticism which, if not checked, would destroy
the institution itself." (The bench made this assertion in the course of the
discussion on the Shiv Shanker vs. P.N. Duda case to convey that the courts
have to see "all the surrounding circumstances including the person
responsible for comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be achieved," to
ascertain "the good faith and the public interest" in any criticism of the
court. The implication is that Shiv Shanker could escape punishment for
casting aspersions on the courts because he was Law Minister and a former
High Court judge and that ordinary citizens do not have that privilege.)

* "As the respondent has not shown any repentance or regret or remorse, no
lenient view should be taken in the matter. However, showing the magnanimity
of law by keeping in mind that the respondent is a woman, and hoping that
better sense and wisdom shall dawn upon the respondent in the future to
serve the cause of art and literature by creative skill and imagination, we
feel the ends of justice would be met if she is sentenced to symbolic
imprisonment besides paying a fine of Rs.2,000." This comment is seen not
only as a sample of the bench's gender insensitivity but also its tendency
to humiliate the contemner even while holding her guilty of contempt and
handing out a "symbolic" punishment.

The Arundhati Roy case is not the first or the only instance of the courts
invoking the power to punish for criminal contempt. The Court's ruling might
have got disproportionate attention as compared to similar cases because of
Arundhati Roy's literary eminence. But the significance of the judgment lies
not in the fact that it has punished a writer of world stature but in its
implications for the freedom of expression of a determined citizen affirming
her fundamental right to freedom of expression by criticising the judiciary
in a forthright manner.

Before she was taken to jail, Arundhati Roy said: "I stand by what I said
and I am prepared to suffer the consequences. The dignity of the court will
be upheld by the quality of their judgments; the quality of their judgments
will be assessed by the people of this country. The message is clear. Any
citizen who dares to criticise the court does so at his or her peril. The
judgment only confirms what I said in my affidavit. It is a sad realisation
for me, because I feel the Supreme Court of India is an important
institution and the citizens of India have high expectations from it."

Arundhati Roy was not alone in the sadness of this realisation. The NBA,
which has defended her right to criticise the court, described the verdict
as unjust. Hundreds of NBA activists from the Narmada valley courted arrest
outside the Supreme Court. After their release they staged a dharna outside
the Tihar Jail until Arundhati Roy was released on March 7. Outside the
jail, she read out a poem: "The king, the minister and the court said it was
night, though it was early morning."

The option of spending three more months in jail by refusing to pay the fine
was available to Arundhati Roy. Many had advised her to pay the fine; others
expressed the opinion that by refusing to pay the fine she could attract
more attention to the cause she championed. The writer explained in a
statement upon release that she decided that "paying the fine was the
correct thing to do, because I have made the point I was trying to make. To
take it further would be to make myself into a martyr for a cause that is
not mine alone. It is for India's free Press to fight to patrol the
boundaries of its freedom which the law of contempt, as it stands today,
severely restricts and threatens. I hope the battle will be joined."

The judgment evoked widespread protest. Prakash Karat, a Polit Bureau member
of the Communist Party of India (Marxist), said the judgment was "against
the interest of the working class" and that it was an attempt to "muzzle the
right to criticise the Court's judgment". CPI general secretary A.B. Bardhan
warned against the use of the contempt law to muzzle criticism of judicial
decisions. 

The Safdar Hashmi Memorial Trust (SAHMAT) issued a statement expressing its
"dismay and pain" at the judgment. "The sentence is far from symbolic," it
pointed out. The National Federation of Indian Women said that the judgment
could have serious consequences for the rights of women. "The judgment has
insulted women, saying it is showing leniency to Arundhati as she is a
woman. Such stereotyping of women as the weaker sex is typical of male
chauvinism," it said. The All India Democratic Women's Association
criticised the bench's remark that Arundhati Roy got a lesser punishment
because she was a woman as being "patronising in the extreme."

There were many prominent voices outside the country condemning the Indian
Supreme Court's verdict. Over 300 members of the Italian Parliament wrote to
President K.R. Narayanan, conveying the Italian people's appreciation of
Arundhati Roy's political, moral and literary commitment. Noted American
intellectual Noam Chomsky expressed his great admiration for the Indian
writer's courage. In a message from the United States, a group of well-known
writers and film personalities wrote to the Indian President describing the
Arundhati Roy case as "a vital test for India" and urging him to reject the
charges against her.

At a press conference in New Delhi soon after her release from the jail,
eminent editors, journalists and activists highlighted that the intolerance
demonstrated by the higher judiciary, and specifically the misuse of
criminal contempt powers, have become a constraint on, and threat to,
freedom of speech and expression and freedom of the Press. References were
made to the exaggerated sense of insecurity within the higher judiciary. "I
never thought the judiciary is such an endangered institution. This is not
the common perception," said N. Ram, Editor, Frontline, referring to a
sentence in the judgment that asserted that "after more than half a century
of Independence, the judiciary in the country is under a constant threat and
being endangered from within and without."

Ram suggested, on the basis of a resolution passed at a recent seminar on
contempt of court in New Delhi, that Parliament should amend the Contempt of
Courts Act to safeguard freedom of speech and expression so that "no
criticism of the Court however severe and no imputation against a Judge or
the judiciary will constitute contempt of court unless it is shown the
imputation was baseless and mala fide."

The speakers said that the higher judiciary had increasingly become
intolerant of the vigorous exercise of freedom of expression. It was time to
"clip the wings of the judiciary" insofar as its power to punish for
criminal contempt was concerned, they said.

Vinod Mehta, Editor, Outlook, suggested that the status of the last "holy
cow" left in the system should be ended and more people should speak up in
the face of the threat that they would go to jail for "scandalising the
Court". 

If that happens, Arundhati Roy's day in Tihar Jail will perhaps not be in
vain.


* * * * * * * * * *
http://www.hinduonnet.com/fline/fl1906/19060280.htm

Frontline (India) March 16 - 29, 2002

Arundhati Roy's statement

The following is the statement issued by Arundhati Roy after her release
from Tihar Jail on March 7, 2002:


I stand by what I have said in my Affidavit and I have served the sentence
which the Supreme Court imposed on me. Anybody who thinks that the
punishment for my supposed 'crime' was a symbolic one day in prison and a
fine of two thousand rupees, is wrong. The punishment began over a year ago
when notice was issued to me to appear personally in Court over a ludicrous
charge which the Supreme Court itself held should never have been
entertained. In India, everybody knows that as far as the legal system is
concerned, the process is part of the punishment.

I spent a night in prison, trying to decide whether to pay the fine or serve
out a three-month sentence instead. Paying the fine does not in any way mean
that I have apologised or accepted the judgment. I decided that paying the
fine was the correct thing to do, because I have made the point I was trying
to make. To take it further would be to make myself into a martyr for a
cause that is not mine alone. It is for India's free Press to fight to
patrol the boundaries of its freedom which the law of contempt, as it stands
today, severely restricts and threatens. I hope that battle will be joined.

If not, in the course of this last year, I would have fought only for my own
dignity, for my own right as an Indian citizen to look the Supreme Court of
India in the eye and say, "I insist on the right to comment on the Court and
to disagree with it." That would be considerably less than what I hope this
fight is all about. It's not perfect, but it'll have to do.

There are parts of the judgment which would have been deeply reassuring if
it weren't for the fact that citizens of India, on a daily basis, have just
the opposite experience - "Rule of Law is the basic rule of governance of
any civilised, democratic polity... Whoever the person may be, however high
he or she is, no one is above the law notwithstanding however powerful and
how rich he or she may be."

If only! 

The judgment goes on to say: "After more than half a century of
Independence, the judiciary in the country is under constant threat and
being endangered from within and without". If this is true, would the way to
deal with it be to do some honest introspection or to silence its critics by
exercising the power of contempt?

Let me remind you of the paragraphs in my Affidavit which were held to
constitute criminal contempt of court, that undermined the authority of the
judiciary and brought it into disrepute.

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

Yet, when it comes to an absurd, despicable, entirely unsubstantiated
petition in which all the three respondents happen to be people who have
publicly - though in markedly different ways - questioned the policies of
the government and severely criticised a recent judgment of the Supreme
Court, the Court displays a disturbing willingness to issue notice.

It indicates a disquieting inclination on the part of the court to silence
criticism and muzzle dissent, to harass and intimidate those who disagree
with it. By entertaining a petition based 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 considerable harm."

On the 23rd of December 2001, the Chief Justice of India, in an Inaugural
Address to a National Legal Workshop in Kerala, said that 20 per cent of the
Judges in this country across the board may be corrupt, and that they bring
the entire judiciary into disrepute. But of course this did not constitute
criminal contempt. 

Now let me read you what a former Law Minister said in a public speech some
time ago: "The Supreme Court, composed of the elements of the elite class,
had their unconcealed sympathy for the haves, that is, the zamindars -
anti-social elements, that is, FERA violators, bride-burners and a whole
horde of reactionaries, have found their haven in the Supreme Court."

In this judgment, the Court says that the Law Minister's statement was
permissible because "the criticism of the judicial system was made by a
person who himself had been the judge of the High Court and was the Minister
at the relevant time."

However, they go on to say that "all citizens cannot be permitted to comment
upon the conduct of the Courts in the name of fair criticism, which if not
checked, would destroy the institution itself." In other words, it is not
just what you say, nor its correctness or justification, but who says it,
which determines whether or not it constitutes criminal contempt. In other
words, the assertion contained in the beginning of this judgment, namely:
"whoever the person may be, however high he or she is, no one is above the
law notwithstanding how powerful or how rich he or she might be" - is
contradicted by the judgment itself.

I wish to reiterate that I believe that the Supreme Court of India is an
extremely important institution and has made some enlightened judgments. For
an individual to argue with the Court, does not in any way imply that he or
she is undermining the whole institution. On the contrary, it means that he
or she has a stake in this society and cares about the role and efficacy of
that institution. Today, the Supreme Court makes decisions that affect - for
better or for worse - the lives of millions of common citizens. To deny
comment and criticism of this institution, on pain of criminal contempt,
from all but an exclusive club of 'experts', would, I think, be destructive
of the democratic principles on which our Constitution is based.

The judiciary in India is possibly the most powerful institution in the
country, and as the Chief Justice recently implied, the least accountable.
In fact, the only accountability of this institution is that it can be
subjected to comment and criticism by citizens in general. If even this
right is denied, it would expose the country to the dangers of judicial
tyranny. 

I was also puzzled by the statement in the judgment that says: "...showing
the magnanimity of law, by keeping in mind that the respondent is a woman,
and hoping that better sense and wisdom shall dawn upon the respondent..."
Surely, women can do without this kind of inverse discrimination.

Lastly, I wish to point out that the judgment says that I have drifted away
"from the path on which she was traversing by contributing to the Art and
Literature". I hope this does not mean that on top of everything else, from
now on writers will have to look to the Supreme Court of India to define the
correct path of Art and Literature. 


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