[spectre] Arundhati Roy and the Threat to Free Speech in India today

[Shuddhabrata Sengupta]

Dear Spectre Readers

This is a posting forwarded to inform everybody on this list on the threats 
to free speech in India that is embodied in the charges brought against 
Arundhati Roy (Author of the 'God of Small Things', 'The Greater Common Good' 
and the 'End of Imagination' ) in the Supreme Court of India

On March 6, 2002 the Supreme Court of India  will be delivering a judgement
in the Criminal Contempt of Court case against Arundhati Roy. The maximum
sentence for criminal contempt of court is six months imprisonment.

The recepients can:
* Disseminate the information widely. If they can write in media, that would
be great. They can write articles, letter to editors, email messages, so on.
* They can initiate discussions on related issues among their groups and
through the internet.
* They can join the dignified demonstration planned on March 6 to say
that the demostrators would like to join Arundhati Roy in saying what she
has said in her affidavits, particularly the paragraphs the Supreme Court
has objected to.
They can come just outside Indian Law Institute on Bhagwan Das Road outside
the Supreme Court at 1030 am on March 6.
______________________________________________________________
On March 6th 2002
Arundhati Roy & Criminal Contempt of the Supreme Court of India

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

Since the hearings have been held virtually in-camera, comment and public 
opinion in the matter has been largely uninformed. This is an attempt to 
summarise and clarify the significant issues in the case.
A distinction needs to be made first about two separate and quite distinct 
contempt charges that are being referred to with regard to Arundhati Roy. 
The first case for criminal contempt emerged out of the following events:
On 18th 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 13th 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 14th 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 28th August 2001 by Justice 
G B Pattanaik & Justice Ruma Pal, who dismissed the contempt petition filed 
by Parashar et al., against Patkar, Roy, and Bhushan. They held that the 
petition was grossly defective and unsubstantiated and should have not even 
been accepted by the Registry of the Court. The Court observed that “almost 
every one of the Rules framed by the Court” had been violated and that the 
petition was “shabbily drafted, procedurally grossly defective.” The court 
also observed that “apart from the defective nature of the petition, the 
unexplained reluctance on the part of the four petitioners to affirm an 
affidavit verifying the facts contained in the petition, the failure to even 
attempt to obtain the consent of the Solicitor General and most importantly, 
the refusal of the police station to record an FIR on the basis of the 
complaint lodged by the petitioner No. 1 are telling circumstances against 
the case in the petition.” The Court went on to say that the Registry ought 
not to have cleared the petition, and “Had our attention been drawn to the 
procedural defects, we would have had no hesitation in rejecting the 
application in 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 been 
entertained, Justice G B Pattanaik and Justice Ruma Pal went on to say that 
Arundhati Roy’s affidavit-in-reply contained at least three paragraphs that 
were prima facie contemptuous. These were:
         “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, though it involves 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 three respondents happen to be people, who have 
publicly – though in markedly different ways – questioned the policies of the 
government and severely criticized a recent judgement 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.”

The Court held that in these three paragraphs “She has 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 the court which do not appear to be 
protected by the law relating to fair criticism”. 

On 5th September 2001 a fresh contempt notice was issued to Arundhati Roy.
 In her reply to this notice, Roy pointed out the circumstances in which she 
said what she did in her affidavit. She pointed out that the absurd and 
grossly defective nature of the first contempt petition against her had been 
acknowledged by the Court itself. For a common citizen like her there is no 
distinction between the court and its registry. She found it very strange 
that though the judges of the Supreme Court were obviously very busy, they 
still found time to entertain such a petition. She goes on to say that, in 
the circumstances, “it seemed perfectly appropriate to air my view that in 
this particular instance, the court, by allowing certain citizens to grossly 
abuse its process in this way, creates a disturbing impression that there is 
an 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. It does not, nor was not meant to undermine the dignity of the court. 
I was simply stating an honest impression that had formed in my mind.”
She said that her impression would have been corrected if the Court had done 
any or all of the following things:
“a) Dismissed the petition without issuing notice.
  b) Ordered an inquiry 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.”
Instead, she points out, no members of the public were allowed to enter the 
court in every hearing of the petition. Moreover, the Court took no action 
against the petitioner, R.K. Virmani, who stood up and shouted without any 
justification that he had lost confidence in the judges hearing the matter 
and that it should be transferred to another bench. 
She drew attention to the contempt of court case against the former Law 
Minister 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 “Anti 
social elements ie. FERA violators, bride burners and whole hordes or 
reactionaries have found their haven in the Supreme Court” He was however not 
held 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 of 
individual judges. If the 3 paragraphs of my affidavit dated 16/4/01 are 
deemed to be a criminal offence, it will have the chilling effect of gagging 
the Press and preventing it from reporting on and analyzing matters that 
vitally concern the lives of millions of Indian citizens. This will be an 
unfortunate blow to one of the most responsible, robust institutions of 
Indian democracy. …The prospect of having to undergo a lengthy and exorbitant 
process of litigation, and the threat of an eventual prison sentence, will 
effectively restrain the press from writing about or analyzing the actions of 
the judiciary. It will render the judiciary accountable to no one but itself. 
As I have stated in my affidavit dated 16/4/01, if the judiciary removes 
itself from public scrutiny and accountability, and severs its links with the 
society that it was set up to serve in the first place, it will mean that 
another pillar of Indian democracy will eventually crumble”.

On 15th January, 2002 the second Contempt petition came up for final hearing 
before a bench of Justice Pattanaik and Justice Sethi. Appearing for Roy, Mr. 
Shanti Bhushan moved an application on her behalf asking Justice Pattanaik to 
recuse himself from the proceedings and transfer this case to some other 
court, on the ground that since the allegation against Roy was that she had 
attributed motives to him (he being the judge who had issued notice in the 
first contempt petition), she had a reasonable apprehension of bias on his 
part. Her application said that in hearing and deciding this contempt 
petition, Justice Pattanaik would be sitting as a judge in his own cause.The 
Court however did not take kindly to this application. Justice Pattanaik said 
that this should have been raised earlier, and remarked that raising this 
objection was malafide.
Mr. Shanti Bhushan argued that Freedom of Speech was paramount under the 
Indian Constitution and could only be subjected to ‘reasonable’ restrictions 
for contempt of Court. It was universally accepted that the Courts and their 
judgements could be criticised in the most trenchant terms. Moreover what Roy 
had said was in reply to a court notice (unlike Shiv Shankar who gave a 
public speech). Voicing one’s perception in an affidavit in Court surely 
cannot be said to be contempt he submitted.
Additional Solicitor General Altaf Ahmed, who appeared as amicus (friend of 
the Court) submitted that the Freedom of Speech was subject to the law of 
contempt. He said that Roy’s affidavit contained a blatant imputation of a 
motive on the court and was therefore destructive of the independence of the 
judiciary. He said that in the past people who had "erred" had tendered 
unconditional apologies which the court had accepted magnanimously. However, 
Roy he said, had been defiant, her current affidavit did not contain a hint 
of apology or remorse, and she had instead delivered a gratuitous lecture to 
the court. He argued that even after the Shiv Shankar case there had been 
many instances in which the Court had sentenced persons for imputing motives 
or otherwise scandalising the court.

Once again, a distressing sidelight of the proceedings was the gross and 
obnoxious behaviour in Court of R.K.Virmani, one of the lawyers who had filed 
the original contempt petition. He began by shouting in Court, insisting that 
he be allowed to intervene in these proceedings. Later he sat in the second 
row of the 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 and notice 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 of 
important issues:
1)Are Indian citizens barred from commenting adversely on the court and 
expressing their perceptions of the motivation of the court even if such 
comments are bonafide or justified? How can such a situation be countenanced 
in a democracy where the right of free speech is a fundamental right and 
every institution is subject to public scrutiny and criticism?
2)Is the judiciary completely unaccountable? Can it arbitrarily declare all 
criticism of it to be contempt of court, and then punish the critics by 
sitting as judges in their own cause?
3)Can the Court bar the press and members of the public from the hearing of a 
particular case without assigning good reason?
4)
On March 6th 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 own cause, 
after a series of hearings sealed from public scrutiny. On display will be 
one of the ways in which the world’s largest democracy humiliates its 
critics. 

Anurag Singh
Himanshu Thakkar
Jharana Jhaveri
Prashant Bhushan
Sanjay Kak

For more information and copies of the court documents contact 
janmadhyam@vsnl.com