A Statement By the Asian Human Rights Commission – AHRC
The Asian Human Rights Commission (AHRC) is saddened by the Indian Supreme Court’s judgement on 6 March 2002 against Arundhati Roy for a statement she made in her affidavit to the court in an earlier case. In her affidavit, Arundhati Roy explained her criticism of some aspects of the court process and asserted her right as an ordinary citizen of India to criticize the court. AHRC is of the view that she was well within her right to make the criticism that she made. We salute her courage to stand by her words and her affidavit. Such courageous defiance is essential in expanding the recognition of freedoms by everyone, including the courts.
The details about the case and the affidavit is given below:
In 1999, the Supreme Court deliberated charging Arundhati Roy and the Narmada Bachao Andolan (NBA) with a contempt of court trial – in the midst of a Satyagraha (peaceful protest) by the NBA protesting the displacement due to an increase in the Narmada dam height from 80m – 85m. While the Supreme Court did not pursue this case, in 2001, they charged Prashant Bhushan, Medha Patkar, and Arundhati Roy with a contempt of court case on the basis of a petition filed by some lawyers. The Supreme Court subsequently dismissed these cases, but initiated a fresh one against Arundhati Roy on the basis of her affidavit filed in the first case! On the 6th March 2002, the court found her guilty. She was sentenced to symbolic one-day imprisonment and two thousand Indian Rupees fine, in default of which for 3 Months imprisonment.
Protests and condemnnations against the judgement and letters of solidarity for Arudathi Roy is pouring in from all over the world. For Details see www.narmada.org
Soon after the verdict was announced Arundhati Roy was whisked away without the opportunity of addressing a very large number of national and international press and media. In a handwritten note written after the judgement she 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 judgements. The quality of this judgement will be assessed by the people of the country. The message is clear. Any citizen who dares to criticise the court does so at his or her peril. The judgement only confirms what I said in my affidavit. It is a sad realization for me, because I feel the Supreme Court of India is an important institution and the citizens of India have high expectations from it?\”
Affidavit in Response of the respondent/noticee
I, Arundhati Roy, daughter of Mary Roy, resident of 2A Kautilya Marg, New Delhi 110021, do hereby state and affirm as follows: That I have read and understood the contents of the Contempt Notice issued to me dated 5th September 2001 and my reply to it is as under:
1. The Contempt Notice alleges that three paragraphs in my Affidavit dated 16.4.2001 are grossly contemptuous, that they attribute improper motives to the Court and therefore amount to Criminal Contempt of the Court as defined under Section 2(c) of the Contempt of Court Act read with Article 129 of the Constitution of India. In this particular instance I understand \”Criminal Contempt of the Court\” to mean \”the publication of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize or lowers 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, 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 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.\”
2. I submit that there has been a misreading and complete misunderstanding of my affidavit in general and of the above three paragraphs in particular. I have not attributed any improper motive to any particular judge. I have not said anything that scandalizes or tends to scandalize or lowers or tends to lower the authority of the Court. I have not asserted as a fact that the Court wishes to muzzle dissent. I have said that by admitting a flawed petition against three people who had recently and publicly criticised the Supreme Court judgement in the Sardar Sarovar case, the Court creates this impression. Therefore, I said, by its own action, the Court is harming its credibility and reputation. In a democracy, it is a citizen’s duty to point this out.
3. If Supreme Court judges are too busy to be spared to head a judicial enquiry into a matter concerning national security and corruption in the highest places, 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 overburdened Court had time to entertain an obviously false and flawed petition such as the one filed by J.R Parashar and others (Crl No. 2/2001 titled J.R. Parashar and Others Versus Prasant Bhushan and Others). In our affidavits in reply, Medha Patkar, Prashant Bhushan, as well as I myself pointed out the reasons why, in our opinion, the petition was false, contained multiple flaws, was a deliberate attempt to mislead the Court and did not have the approval of the Attorney General, which is mandatory in a Contempt of Court case.
5. Subsequently the Court itself in its order dated August 28th 2001, while dismissing the petition, said that it violated \”almost every one of the Rules framed by this Court\” and was \”shabbily drafted, procedurally grossly 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 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. Admittedly, the police personnel were present at the time of the incident. 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 in the 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 been scrutinized by the Registry of this Court that the proper procedure has been followed as it is the duty of the Registry to scrutinise the petition to see whether 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 before considering the merits of each matter. Had our attention been drawn to the procedural defects, we would have had no hesitation in rejecting the application in 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 grossly defective procedure by which it came to be admitted to the highest court in the land.
8. As an ordinary citizen, I cannot and could not have been expected to make a distinction between the Registry and the Court. In my eyes, the Court is responsible for the functioning of its Registry. Together they decide the prioritization of judicial resources, together they decide which petitions are admitted and which are not. For a common citizen, the Registry of the Supreme Court is the threshold to Justice itself. If citizens cannot have faith in the proper functioning of the Registry, it is bound to undermine their faith in the Court itself. Given the circumstances, it seems perfectly justifiable for someone in my position to wonder why such an obviously defective petition had been admitted by the Court. 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 the 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 it meant to undermine the dignity of the Court. I was simply stating the honest impression that had formed in my mind.
9. Issuing a Criminal Contempt Notice may be a routine, everyday matter for the Court. However, for an ordinary citizen who receives one, it involves considerable travail and humiliation. To begin with, one has to engage lawyers and spend a great deal of time briefing them, and drafting affidavits. Hiring lawyers also involves a major expense. For a working person, being asked to schedule one’s entire life around enforced court appearances, as though one is a common criminal, is humiliating and damaging to one’s professional life. It is therefore incumbent on the Court to see that a petition on the basis of which Notice is issued, passes at least a minimum credibility test.
10. Other than the facts pertaining to the petition (Crl No. 2/2001 titled J.R. Parashar and Others Versus Prasant Bhushan and Others), the manner in which it was admitted, and the travails that receiving a Contempt Notice from the Supreme Court of India entails, there were some other salient facts present in my mind when I filed my affidavit dated 16.4.2001 which will also explain the reasons for writing what I did.
11. In May 1999, my essay titled \”The Greater Common Good\” was published in Outlook and Frontline magazines. On 15th October 1999, the Supreme Court made the following remarks against me:
\”Judicial process and institution cannot be permitted to be scandalized or subjected to contumacious violation in such a blatant manner in which it has been done by her. …… Vicious stultification and vulgar debunking cannot be permitted to pollute the stream of justice. … We are unhappy at the way in which the leaders of the NBA and Ms Arundhati Roy have attempted to undermine the dignity of the court. We expected better behaviour from them.\”
The order also said \”Whatever may be the motive of Ms Arundhati Roy, it is quite obvious that she decided to use her literary fame by misinforming the public and projecting in a totally incorrect manner how the proceeding relating to Resettlement and Rehabilitation had shaped in the Court….\”
12. I was not a party to the case on the Sardar Sarovar Project. The order was passed without giving me an opportunity to be heard and was therefore in violation of the Principles of Natural Justice.
13. It is certainly true that I had (and continue to have) a different opinion from that contained in the majority – and therefore operative – Judgement on the Sardar Sarovar issue. But so do millions of people in the world, as did one of the Judges on that particular bench who wrote an admirable, dissenting judgement. \”Vulgar debunking\” and \”vicious stultification\” are strong words indeed to describe a difference of opinion.
14. The Greater Common Good has been published and reprinted in several countries and several languages across the world. Each fact and figure has been backed up with notes and references and maps. So far no one has pointed out a single factual error in the essay, nor have I been made aware of any instance of deliberate ‘misinformation’. It was unjustified on the part of the court to suggest that I deliberately ‘decided’ to use my ‘literary fame’ to misinform the public. A baseless comment like this does not behove the august offices of the Apex Court.
15. This incident contributed in no small measure to the impression that I stated in my affidavit.
16. A person can perhaps be forced under duress to withdraw a statement, or apologize for stating an opinion. However, a person cannot be coerced into changing his or her mind. That can only happen through persuasion. The impression 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 following things:
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 affidavit have done nothing to dispel an already unfortunate impression that has been created. 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 this petition came to be admitted to the Supreme Court.
18. I do not believe that the criticism of the Court or its process by an individual, whoever that individual might be, can possibly lower the dignity of an institution as powerful and venerable as the Supreme Court of India. If the criticism is random and unfounded, it will automatically rebound on the reputation and credibility of the individual who leveled it. If, on the other hand, the criticism is substantial or valid, the Court cannot hope to restore its dignity by punishing or silencing the critic. Indeed, doing so will have the opposite effect. The dignity, the authority and the reputation of the Court depend 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 basis of actions and judgements over more than half a century cannot be undermined by criticism from an individual.
19. It has always been accepted that the judgements and actions of the courts can be subjected to the most severe and trenchant criticism. Any serious jurisprudential analysis of the evolution and development of law would necessarily involve an attempt to understand why the Court has acted in the manner that it has. Highly respected judges and serious academic scholars have always done this kind of analysis of the courts. Books like \”The Politics of the Judiciary\” by J.A.G.Griffith are learned attempts to understand how the political views of individual judges have altered the course of the interpretation of law. Studies like this would necessarily involve an attempt to understand and discuss the motivation of judges and how this has affected their judgements, and thus, the development of Law. If such discussion is prohibited on pain of contempt it will render the entire analysis of the judiciary completely sterile.
20. Certain interpretations of Section 2(c) of the Contempt of Court Act tend to be inconsistent with the Right to Free Speech. Keeping in mind the reasons mentioned in Para 8 above, in case of a conflict between the Law of Contempt and the Right to Free Speech, the fair and judicious thing for the Court to do would be to err on the side of protecting Free Speech.
With reference to the present case, it is submitted that this Court’s allegation that three paragraphs in my affidavit dated 16.4.2001 amount to a criminal offense under Section 2 (c) of the Contempt of Court Act is an incorrect interpretation of the law. Other individuals have made similar if not more trenchant criticisms of the functioning of the Court and have not been found guilty of committing Contempt of Court: During a speech he gave at a meeting of the Bar Council in Hyderabad, Shri P.Shiv Shankar, then Minister of Law, 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 hordes of reactionaries have found their haven in the Supreme Court.\” A case for Contempt of Court was filed against him. In the order by Justices Sabyasachi Mukherjee and S. Ranganathan J.J, dated April 15th 1988, the Law Minister was absolved of the charge of Contempt of Court.
21. Whimsical interpretations of the same Law leave citizens at the mercy of individual judges. If the three paragraphs of my affidavit dated 16.4.2001 are deemed 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 from reporting on and analysing matters that vitally concern the lives of millions of Indian citizens. This will be an unfortunate blow to one of the most responsible, most robust institutions of Indian democracy.
22. In a democracy, a Free Press is, or ought to be, as cherished an institution as a Fair Judiciary. A democracy must have an arena in which contending ideas and plural, competing and dissenting opinions can be freely voiced. 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 Free Press 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 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 analysing the actions of the Judiciary. It will render the Judiciary accountable to no-one but itself. As I have said in my affidavit dated 16.4.2001, 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 yet another pillar of Indian democracy will eventually crumble.
23. In conclusion, may I take the liberty of saying that the process of this trial and all that it entails, is as much, if not more of a punishment than the sentence itself. If the Court sentences a writer to a short spell in prison for the alleged ‘crime’ of stating a reasonable and honest impression, her mind can float through the bars to freedom. But yoke her to this ’cause’ for long enough – these endless meetings with lawyers, this drafting and re-drafting of affidavits, enforced Court appearances that make her feel like a criminal, this fearful study of law books before writing a single line, the apprehension that each new piece of writing will invite more litigation – and perhaps a writer will gradually lose the ability, the spontaneity, and perhaps even the will to write at all.
In my case, I realise that this will come as a relief to many and few will mourn the loss. However, I will mourn the loss of my writing self.
DEPONENT
VERIFICATION: I the deponent abovenamed do hereby verify that the contents of the above affidavit are true to my knowledge and nothing material has been concealed therefrom. Verified at New Delhi on this the 16th Day of October 15, 2001.
7 March 2002
Asian Human Rights Commission – AHRC, Hong Kong
______________________________________________________________________________
Asian Human Rights Commission – AHRC
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