Recent judicial pronouncements on law of contempt have brought the issue to the center stage of public debate and discourse. Against this backdrop, Dr KD Singh ruminates retrospectively on some major judgments rendered by the Supreme Court of India in this branch of law, with a particular focus on the seminal Re Arundhati Roy (2002) Supreme Court decision.

An organisation viz. Narmada Bachao Andolan filed a petition under Article 32 of the Constitution of India before the Supreme Court. It was a movement or andolan, whose leaders and members were concerned about the alleged adverse environmental impact of the construction of the Sardar Sarovar Reservoir Dam in Gujarat and the far-reaching and tragic consequences of the displacement of hundreds of thousands of people from their ancestral homes that would result from the submerging of vast extents of land, to make up the reservoir.

During the pendency of the writ petition, the Court passed various orders. By one of the orders, the Court permitted to increase the height of the dam which was resented to and protested by the writ petitioners and others including the respondent herein. Ms. Arundhati Roy, who was not a party to the writ proceedings, published an article entitled 'The Greater Common Good' which was published in Outlook Magazine and in some portion of a book written by her.

Two judges of the Court, forming the three-judge Bench felt that the comments made by her were, prima facie, a misrepresentation of the proceedings of the court. It was observed that judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner, it had been done by her.

Recording its disapproval of the act of the respondent and showing its magnanimity, the Court declared:

'After giving this matter our thoughtful consideration and keeping in view the importance of the issue of resettlement and rehabilitation of the PAFs, which we have been monitoring for the last five years, we are not inclined to initiate proceedings against the petitioner, its leaders or Ms. Arundhati Roy. We are of the opinion, in the largest interest of the issues pending before us, that we need not pursue the matter any further. We, however, hope that what we have said above would serve the purpose and the petitioner and its leaders would hereafter desist from acting in a manner which has the tendency to interfere with the due administration of justice or which violates the injunctions issued by this Court from time to time.'

The third learned Judge also recorded his disapproval of the statement made by the respondent herein and others and felt that as the court's shoulders are broad enough to shrug off their comments and because the focus should not shift from the resettlement and rehabilitation of the oustees, no action in contempt be taken against them.

However, after the judgment was pronounced increasing the height of the dam, an incident was stated to have taken place on December 30, 2000 regarding which a Contempt Petition No. 2 of 2001 was filed by J.R. Parashar, Advocate and others. According to the allegations made in that petition, the respondents named therein, led a huge crowd and held a Dharna in front of this Court and shouted abusive slogans against the court including slogans ascribing lack of integrity and dishonesty to this institution. It was alleged that when the petitioners therein protested, they were attacked and assaulted by the respondents. In the evening on the same day, the respondents are stated to have attacked, abused and assaulted the petitioners.

A complaint was stated to have been lodged with the Tilak Marg Police Station on the next day. In the aforesaid contempt proceedings notices were issued to the respondents in response to which they filed separate affidavits. All the three respondents therein admitted that there was a Dharna outside the gates of the Court on December 30, 2000 which was organised by Narmada Bachao Andolan and the gathered crowd were persons who lived in the Narmada Valley and were aggrieved by the majority judgment of this Court relating to the building of the dam on the Narmada River. In her affidavit Arundhati Roy (one of the respondents), amongst other averments, had stated:

'On the grounds the judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a single 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 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.'

The assertions in the aforesaid contempt petition attributed that the contemnors shouted abusive slogans against the court including slogans ascribing lack of integrity and dishonesty to the institution undoubtedly made the action of the contemnor gross contemptuous and as such the court had initiated the contempt proceedings by issuing notice. But in view of the denial of the alleged contemnors to the effect that they had never shouted such slogans and used such abusive words as stated in the contempt petition, instead of holding an inquiry and permitting the parties to lead evidence in respect of their respective stand, to find out which version is correct, the court thought it fit not to adopt that course and decided to drop the proceedings. But in the very show cause that had been filed by Ms. Arundhati Roy, apart from denying that she had not used any such words as ascribed to her, she had stated in three paragraphs, as quoted earlier, after denying that she had never uttered the words ascribed to her and those paragraphs having been found prima facie contemptuous, the suo motu proceedings had been initiated and notice had been issued. However, the Court felt that Ms. Arundhati Roy was found to have, prima facie, committed contempt as she had imputed motives to specific courts for entertaining litigation and passing orders against her. She had accused courts of harassing her as if the judiciary were carrying out a personal vendetta against her. She had 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 law relating to fair criticism. It was stated by her in the court that she stood by the comments made by her even if the same are contumacious. For the reason recorded therein, the Court issued notice in the prescribed form to the respondent herein asking her to show cause as to why she should not be proceeded against for contempt for the statements in the offending three paragraphs of her affidavit, reproduced hereinearlier.

In her reply-affidavit, the respondent has again reiterated what she had stated in her earlier affidavit. It was contended that as a consequence of the Supreme Court judgment the people in the Narmada Valley are likely to lose their homes, their livelihood and their histories and when they came calling on the Supreme Court, they were accused of lowering the dignity of the court which, according to her is a suggestion that the dignity of the court and the dignity of the Indian citizens are incompatible, oppositional, adversarial things. She stated:

'I believe that the people of the Narmada valley have the constitutional right to peacefully protest against what they consider an unjust and unfair judgment. As for myself, I have every right to participate in any peaceful protest meeting that I choose to. Even outside the gates of the Supreme Court. As a writer I am fully entitled to put forward my views, my reasons and arguments for why I believe that the judgment in the Sardar Sarovar case is flawed and unjust and violates the human rights of Indian citizens. I have the right to use all my skills and abilities such as they are, and all the facts and figures at my disposal, to persuade people to my point of view.'

She also stated that she has written and published several essays and articles on Narmada issue and the Supreme Court judgment. None of them was intended to show contempt to the court. She justified her right to disagree with the court's view on the subject and to express her disagreement in any publication or forum. In her belief the big dams are economically unviable, ecologically destructive and deeply undemocratic. In her affidavit she has further stated:

'But whoever they are, and whatever their motives, for the petitioners to attempt to misuse the Contempt of Court Act and the good offices of the Supreme Court to stifle criticism and stamp out dissent, strikes at the very roots of the notion of democracy.

In recent months this Court has issued judgments on several major public issues. For instance, the closure of polluting industries in Delhi, the conversion of public transport buses from diesel to CNG, and the judgment permitting the construction of the Sardar Sarovar Dam to proceed. All of these have had far-reaching and often unanticipated impacts. They have materially affected, for better or for worse, the lives and livelihoods of millions of Indian citizens. Whatever the justice or injustice of these judgments whatever their finer legal points, for the court to become intolerant of criticism or expressions of dissent would mark the beginning of the end of democracy.

An 'activist' judiciary, that intervenes in public matters to provide a corrective to a corrupt, dysfunctional executive, surely has to be more, not less accountable. To a society that is already convulsed by political bankruptcy, economic distress and religious and cultural intolerance, any form of judicial intolerance will come as a crippling blow. 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 would mean that yet another pillar of Indian democracy will crumble. A judicial dictatorship is as fearsome a prospect as a military dictatorship or any other form of totalitarian rule.

The Tehelka tapes broadcast recently on a national television network show the repulsive sight of Presidents of the Bhartiya Janata Party and the Samata Party (both part of the ruling coalition) accepting bribes from spurious arms dealers. Though this ought to have been considered prima facie evidence of corruption, yet the Delhi High Court declined to entertain a petition seeking an enquiry into the defence deals that were referred to in the tapes. The bench took strong exception to the petitioner approaching the court without substantial evidence and even warned the petitioner's counsel that if he failed to substantiate its allegations, the court would impose costs on the petitioner.

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 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.

In conclusion, I wish to reaffirm that as a writer I have right to state my opinions and beliefs. As a free citizen of India I have the right to be part of any peaceful dharna, demonstration or protest march. I have the right to criticize any judgment of any court that I believe to be unjust. I have the right to make common cause with those I agree with. I hope that each time I exercise these rights I will not be dragged to court on false charges and forced to explain my actions.'

In the aforesaid backdrop, the Supreme Court dealt with the question whether the offending paras in her affidavit amounted to contempt of court. In the proceedings, a preliminary objection was raised by the contemnor that the Hon’ble Judges who issued notice in Criminal Petition No. 2 of 2001 should not be a party to the present proceedings and the case be transferred to some other Bench.

Rejecting the plea of recusal, the Supreme Court held that cognizance of the criminal contempt against the respondent has been taken by the Court, suo motu under Section 15 of the Act. Whereas sub-section (2) of Section 14 permits a person charged with the contempt to have charge against him tried by some judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed and the court is of opinion that it is practicable to do so. No such provision is made under Section 15 of the Act.

Obviously for the reason that when action is at the instance of the Court, there is no question of any motive of and prejudice from any judge. The Court also held that accepting the plea raised by the respondent would amount to depriving all the judges of the court to hear the matter and thus frustrate the contempt proceedings, which cannot be the mandate of law. The apprehension of the respondent was found to be imaginary, without basis and not bonafide. The oral prayer made for one of the judges not to be a member of the Bench, hearing the matter was rejected.

It is stated that the aforesaid view of the Supreme Court is totally erroneous as the alleged contempt was committed infacie curiae inasmuch as the offending affidavit was filed before a Bench of the Supreme Court and hence falls within the purview of section 14 of the Contempt of Courts Act, 1971 which deals with the procedure where contempt is in the face of the Supreme Court or a High Court. A bare reading of the provision would indicate that in cases of contempt in the face of the Supreme Court or a High Court where a person charged with contempt under this section applies whether orally or in writing to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed and the court is of opinion that it is practicable to do so, and that in the interest of proper administration of justice, the application should be allowed, the same has to be done.

Thus, the view of the Supreme Court is highly convoluted inasmuch as suo motu cognizance can be taken and in fact has been taken by the Supreme Court under section 14 of the Contempt of Courts Act, 1971 and therefore to this extent, the judgment suffers from a serious infirmity. Moreover, the logic of the court in not entertaining the plea of recusal is highly fallacious. It is not understood as to how the acceptance of such plea would deprive all the judges to hear the matter. The plea was against a particular judge (and not even the Bench) in whose presence the contempt allegedly took place.

Even otherwise, the principles of natural justice demand that the learned judge ought to have recused on his own without even waiting for the contemnor to request to the same effect. Justice is rooted in confidence and it is destroyed when right minded people go with the impression that the judge was biased. It is submitted that after Maneka Gandhi's case, procedural fairness is part and parcel of our constitutional scheme and consequently the refusal to recuse by the judge can hardly be termed as procedurally fair. It is submitted that principle of natural justice, due process requirement after Maneka and ordinary notions of justice demanded the judge to refuse to hear the matter and to recuse from the Bench.

It is submitted that there is an in-built bias in the contempt proceedings inasmuch as the functions of the judge, the jury, the hangman and the pall bearers are all discharged by the same institution and it becomes more pronounced when the court takes suo motu cognizance in contempt proceedings and thus the suo motu jurisprudence further compounds the injustice the alleged contemner and results into violation of cherished freedoms.

A further plea was raised by the contemnor to defer the proceedings to await the decision of a constitutional Bench in Dr. Subramaniam Swamy v. Rama Krishnan Hegde. In the said case a reference was made to the Supreme Court to reconsider the dicta laid down by the Supreme court in Perspective Publications (P) Ltd. v. State of Maharashtra.

Thus, it was contended that truth can be pleaded as a defence in contempt proceedings. However, the Supreme Court rejected the submission holding that “[i]nasmuch as the question of truth being pleaded as defence in the present case, does not arise. Contempt proceedings have been initiated against the respondent on the basis of the offending and contemptuous part of the reply affidavit making wild allegations against the Court and thereby scandalized its authority. There is no point or fact in those proceedings which requires to be defended by pleading the truth.”

Thus, the Supreme Court was not even prepared to consider the plea of truth as the same was found to be irrelevant and immaterial. It is stated that the alleged contemptuous paragraphs in the affidavit reflected some factual aspects and therefore it is quite surprising that the truth was held irrelevant in the proceedings. It may be further stated that after Maneka Gandhi's case any restriction on fundamental rights which is not just, fair and reasonable is blatantly unconstitutional and a procedure which does not recognize truth as a defence is, ex facie, an unreasonable restriction on free speech and cannot be termed as reasonable by any notions of arguments and reasoning.

Further distinguishing its own holding in P.N. Duda v. P. Shiv Shanker, the Supreme Court observed that 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. He had made studies about the system and expressed his opinion which, under the circumstances, was held to be not defamatory despite the fact that the court found that in some portion of the speech the language used could have been avoided by the Minister having the background of being the former judge of the High Court. His speech, under the circumstances, was held to be not amounting to imminent danger of interference with the administration of justice nor of bringing the administration into disrepute.

It is thus apparent from the aforesaid observation of the Supreme Court that the liability will differ depending upon the fact that 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 or by a person having no judicial background. Such a view is highly skewed and makes hostile discrimination between the two categories of the citizens and renders it susceptible to attack on the benchmark of right to equality guaranteed under the constitution.

The further observation of the Supreme Court in the case to the effect that the respondent has not claimed to be possessing any special knowledge of law and the working of the institution of the judiciary and further that she has not claimed to have made any study regarding the working of the Supreme Court or judiciary in the Country is highly shocking and surprising. A citizen of the country need no learning, formal or otherwise, to exercise its fundamental right to freedom of speech and expression else the said right would become illusory, moonshine and a monopoly of few elites in this country of teeming illiterates.

Further, the observation of the Supreme Court to the effect that the law "punishes the archer as soon as the arrow is shot no matter if it misses to hit the target" reflects another anomaly in the law (as interpreted) to the requirement of mens rea in a charge of contempt. It is submitted that contempt proceedings being penal are quasi criminal in nature and therefore the offence of contempt must necessarily have mens rea as a necessary ingredient thereof. Absence whereof would unsettle the settled principles of certainty of criminal law and would render the law vulnerable, more so, after the entry of due process clause in Indian Constitution through Maneka Gandhi’s case as stated above.

Lastly, it is submitted that the Supreme Court convicted the author Ms. Arundhati Roy for the contempt of the court and sentenced her to simple imprisonment for one day and to pay a fine of Rs.2,000/-. It is pertinent to mention that the Supreme Court judgment on the quantum of punishment is perincurium inasmuch as section 13(a) of the Contempt of Courts Act, 1971 clearly states that no court shall impose sentence under the Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

It is submitted that in the present case, no charge was framed to this effect much less any finding recorded thereon and consequently it is writ large that as far as the sentence of one day is concerned, it is totally illegal, bad in law and contrary to statutory mandate. It is stated that the scheme of section 13 of the Act is clear in that as a rule the punishment in case of contempt has to be by way of fine and it is only when the court is satisfied that the contempt is of such a nature that it substantially interferes or tendssubstantially to interfere with the due course of justice, a punishment by way of sentence is warranted. In the present case, no attention was given to section 13 and punishment by way of sentence was imposed and therefore the judgment of the court is not sustainable to this extent as well. It is submitted that sending a citizen for exercising his or her right to freedom of speech and expression (even amounting to contempt) in a functioning and vibrant democracy is indeed a very poor reflection on our judicial system and the laws. Some urgent action on the part of the law makers is needed to rectify such judicial deviance.