The Delhi Mid-Day case has focussed our attention on the Contempt of Courts Act, and the threat to freedom of speech and expression. In 2001-02, I had closely observed how the Supreme Court circumvented the Act to punish Arundhati Roy, even though in terms of Court's own reasoning, the grounds for doing so did not exist. In the light of the Mid-Day case which revealed the Court's refusal to examine the contemners' plea of truth as a defence, I studied the Arundhati Roy case again to compare it with the present case. Both are suo motu cases, with the petitioners failing to secure the consent of the Attorney General or the Solicitor General as required by the Act, but succeeding to convince the Court to issue notice to the alleged contemners.
The Supreme Court issued notices to Arundhati Roy, Medha Patkar and Prashant Bhushan for criminal contempt following a dharna organised by the Narmada Bachao Andolan outside the Supreme Court on December 13, 2000. The bench comprising Justices Ruma Pal and G.B. Pattanaik, which heard the case, concluded that the petition did not contain allegations that the participants in the dharna had picketed the gates of the court and prevented lawyers or litigants from entering or leaving the court premises. Such allegations, if made and substantiated, could have constituted criminal contempt under sub-sections 2 (c)(ii) and (iii) of the Act. The bench also agreed that procedurally, the petition was deeply flawed and should not have come up before the court for this reason.
But all this did not stop the Supreme Court from issuing a fresh notice of criminal contempt on Arundhati Roy for the three paragraphs in her affidavit.
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.
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.
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 did not contain any such assertion. Nor did 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."
The distinction between making an allegation against a particular Judge/Court and the Judiciary in general has always been blurred by the Court. In the A.Roy case, the Bench which issued notice to her said she had attributed motives to a particular Court in her affidavit of harrassing her. In the Judgment, however the Pattanaik-Sethi Bench held that she was guilty of contempt, as her affidavit had defamed the entire Judiciary. The question raised by her was if she had indeed attributed motives to a particular Court, then that Court should recuse itself from deciding on her case. The judgment circumvented this argument by suggesting that her action scandalised the Judiciary in general.