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DAM-L LS: Frontline - Of Contempt and Legitimate Dissent (fwd)



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Subject: LS: Frontline - Of Contempt and Legitimate Dissent
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Frontline
Aug. 18-31,2001

THE JUDICIARY

Of contempt and legitimate dissent
Critics of the Supreme Court's Narmada dam judgment test the limits of
legitimate dissent in a contempt case with far-reaching implications.

V. VENKATESAN
SUKUMAR MURALIDHARAN
in New Delhi

THE contempt of court case involving the Booker Prize winning novelist
Arundhati Roy has invited the attention of another writer similarly
honoured. Writing in The New York Times on August 7, Salman Rushdie
suggested that the Supreme Court of India stood arraigned before the "court
of world opinion" for the manner in which it was pursuing the charges. "Can
it be," he asked, "that the Supreme Court of the world's largest democracy
will reveal itself to be biased against free speech and be prepared to act
at the bidding of a powerful interest group - the coalition of political and
financial interests behind the Narmada Dam?"

Arundhati Roy, Narmada Bachao Andolan (NBA) leader Medha Patkar and advocate
Prashant Bhushan received contempt notices for having organised a
demonstration in December 2000 against the Supreme Court's majority judgment
in the Narmada case. Widely criticised by development experts and water
resource management specialists for being inattentive to facts and
insensitive to the needs of the project affected, the majority judgment
rendered last October cleared the way for raising the height of the Sardar
Sarovar dam on the Narmada to its full proposed height.

In April, Roy, Patkar and Bhushan filed their affidavits in reply to the
contempt notice. When hearings resumed in the case on August 2, the court
was urged by Altaf Ahmad, Additional Solicitor-General of India and amicus
curiae, to hold the respondents in contempt for the tone and tenor of their
replies. Initiated on the basis of a complaint filed by five lawyers, the
scope of the contempt case has now been enlarged to embrace the subsequent
conduct of the respondents. And while the Supreme Court has reserved its
ruling on the original complaint, it has retained the option to initiate
fresh proceedings for contempt against Patkar and Roy in particular.

The Supreme Court began its action on the basis of a petition filed by R.K.
Virmani, J.R. Parashar and three other lawyers. The substance of their
complaint is that on December 13 last year, they found their access to the
Supreme Court premises blocked by a noisy crowd outside the gates. Finding
to their consternation that the Supreme Court had become the arena for a
political demonstration, they berated the assembled crowd for an
inappropriate choice of venue. Upon this, the petitions claimed, they faced
grievous physical and verbal abuse and the possibility of life-threatening
injuries. Medha Patkar allegedly exhorted the crowd to kill the lawyers.
Prashant Bhushan, counsel for the NBA, allegedly tugged one of the
petitioners by the hair and promised him that his next appearance in the
Supreme Court premises would be his last. And Arundhati Roy allegedly sought
to incite the crowd into violence by branding the Supreme Court a "thief"
and the lawyer-petitioners as its unabashed "touts".

This supposed factual narration of the events of December was appended to
the petition seeking contempt proceedings against Patkar, Roy and Bhushan.
At the first hearing of the case on April 26, the complainants were warned
that any element of falsehood in their petition would invite a term in jail.
It also emerged that the local police station had not taken cognisance of
the "first information report" made out by the complainants, and that no
case had been registered or investigations conducted. This rather serious
legal lacuna was again raised on August 3 by the Supreme Court Bench
comprising Justices G.B. Pattanaik and Ruma Pal. One of the five
lawyer-petitioners, Virmani, then flew into a paroxysm of simulated rage,
expressing his loss of faith in the Bench, and reproaching it for not giving
him an opportunity to explain his version of events.
It is an interesting sidelight to these events that Virmani was as recently
as February appointed a government pleader by the Union Law Ministry. Yet by
all accounts, the court-room demeanour of Virmani and his fellow-petitioners
has been consistent with the tenor of the original complaint filed by them,
with its mix of lurid fantasy and reckless concoction. At the last hearing,
senior counsel Shanti Bhushan, who appeared for Patkar, pointed out that the
respondents have denied all the accusations made against them. Further, he
argued, the petition was seriously flawed in several respects and should not
have been entertained by the court registry in the first place. It did not
carry the addresses of the petitioners or respondents, and though it
purports to represent five persons, it has been signed by only one. Lastly,
Attorney-General Soli Sorabjee, whose concurrence is required by law for the
Supreme Court to take up a petition for contempt, had declined to do so for
reasons unspecified.

Despite these infirmities, the petition was entertained and notices were
issued. In the circumstances, Shanti Bhushan felt that the strong tone of
the affidavits filed by the respondents was fully warranted.

The Bench suggested that the technical flaws Shanti Bhushan had drawn
attention to could often escape detection, since an average of 62 petitions
were received in the Supreme Court every day. This did not constitute an
adequate basis to condone the rather strong observations made by the
respondents in their affidavits. For instance, the Bench considered a
paragraph in Patkar's affidavit to be on the face of things contemptuous:
"The superior courts have recently shown a disturbing tendency to use the
power of contempt against persons who have been criticising the courts and
their judgments. A judiciary which insulates itself from criticism by using
the power of contempt, is bound to become insensitive to the people that it
is meant to serve. This does not bode well for the future of our republic."

Most legal experts agree that Patkar's assertions fall within the bounds of
legitimate dissent, as laid down by the Supreme Court itself in recent
cases. Attorney-General Soli Sorabjee makes this subtly clear in his article
in a recent anthology commemorating the golden jubilee of the Supreme Court
(Supreme But Not Infallible, Oxford University Press, 2000, page 351): "It
is a mistaken notion that an enforced silence by the threatened use of the
contempt power leads to enhancement of the public image of the judiciary
when corruption within some of its ranks is the talk of the town." Sorabjee
proposes the amendment of the contempt law to provide for the defence of
truth and the public interest. He also advocates imposition of stiff civil
and criminal penalties upon a person who fails to substantiate his or her
allegations.

Patkar's assertions seem unexceptionable in this context, since they do not
impute motives to any judge and are in the nature of a generalised
observation on the manner in which contempt powers have been invoked. Yet as
the law stands she cannot claim truth as a defence. And the court is now
seemingly tilting to the view that a mala fide has been read into its
decision to issue notice for contempt. It posed a rather pointed question to
Patkar: "Are we muzzling dissent?" Shanti Bhushan responded that this was
his client's perception, and that if it amounted to contempt she was willing
to serve her time in prison. He added for good measure that a perception was
growing that the judiciary was far removed from social realities and had
begun to use contempt powers to stifle criticism of its judgments.

The Supreme Court Bench had a wider range of objections in the case of Roy's
affidavit. In a trenchant submission, Roy confessed herself rather mystified
by the conduct of the Supreme Court. On the one hand the Chief Justice of
India had refused to nominate a sitting judge to inquire into the
proliferating scandals in defence procurement that the Tehelka tapes had
laid bare. His plea then was that the Supreme Court was over-burdened with
cases and could not afford any such diversions. Yet when it came to an
"absurd, despicable, entirely unsubstantiated petition" urging the
initiation of contempt proceedings against critics of the Narmada judgment,
the Supreme Court showed a curious alacrity. This, said Roy, "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." In
acting with such seeming sense of purpose upon a case that had failed to
interest even the local police station, the Supreme Court, said Roy, "is
doing its own reputation and credibility considerable harm."

Roy has had an earlier brush with the Supreme Court's sense of offended
majesty. While hearing the NBA's public interest petition against the Sardar
Sarovar Project, the Supreme Court Bench had taken note of certain rather
sharp comments made by Roy in her 1999 essay, "The Greater Common Good"
(Frontline, June 4, 1999). The court's order - rendered without giving her
an opportunity to explain herself - then held out a warning to her to curb
her "objectionable writings".

To the evident displeasure of the Bench hearing the case, Roy has in her
affidavit characterised this admonition from the highest court as
"insulting". Appearing on August 3 without the aid of counsel, Roy by all
accounts was both straightforward and crystal clear in her response to this
expression of judicial displeasure: "I find the issuance of notice insulting
to me. I stand by my affidavit. If you think it is inappropriate and
contemptuous, please proceed against me."
Justices Pattanaik and Pal assured Roy that though her credentials as a
writer were not in question, she was not at liberty to impute motives to the
court. Nor would she be justified in assuming that any judge harboured a
"personal hysteria" against her. The sole purpose of the judges was to
ensure respect for the rule of law.

Extended video recordings of the December 13 demonstration have since been
circulating, as also interviews with the petitioners Parashar and Virmani,
which call into question their credentials. The two lawyers, for instance,
have admitted that they met the Supreme Court Registrar on the day of the
demonstration, seeking some action from him. They were then referred to
Chief Justice Dr. A.S. Anand and later to Solicitor-General Harish Salve.
While the Registrar pleaded his inability to disperse the demonstrators, the
Chief Justice, according to their own claims, "advised" the petitioners to
meet Salve, who in turn, suggested that a complaint be filed which could be
the basis for a contempt petition. If in pursuing this course of action the
petitioners embellished the events of the day with generous infusions of
fantasy, they could soon be called to account. Justices Pattanaik and Pal,
in reserving judgment on their plea, have kept open the option of ordering
an inquiry into the events of December 13.

There is universal agreement today among legal experts that fair criticism
of judicial acts is not contempt. In a landmark case in 1971, the Supreme
Court said that "justice is not a cloistered virtue and she must be allowed
to suffer the scrutiny and respectful even though outspoken comments of
ordinary men." What borders on scandalisation of court is perhaps imputing
motives or mala fide on the part of the court in the performance of its
duties. Even these, however, may not constitute contempt, if there is no
"clear and present danger" to the administration of justice. This is the
most enlightened and liberal position on contempt, as laid down in various
rulings in the United States and the United Kingdom.

Curiously, the judiciary in India seems immune to these winds of liberalism.
In a recent case the Supreme Court sentenced S.K. Sundaram, a Madras High
Court advocate, to six months' imprisonment, for questioning the
authenticity of Chief Justice Anand's age testimonials. It later suspended
the sentence for five years on the condition that the accused would refrain
from repeating his offence. Sundaram gave the undertaking as required but
died shortly afterwards. In this case, the court arrived at its verdict
without the benefit of concluding its own probe into the document that was
widely circulated, showing a discrepancy in the official records on the age
of the Chief Justice.

The Madhya Pradesh High Court recently sentenced civil liberties activist
and trade unionist Rajendra K. Sail to six months' imprisonment, for terming
the acquittal of all the accused in the murder of Shankar Guha Niyogi as
"rubbish". Four journalists who reported Sail's comment were also convicted
along with him. All five contemners have since secured bail and appealed
against their conviction in the Supreme Court.

The case of Vineet Narain, editor of www.kalchakra.org - an occasional
investigative journal published from New Delhi - is also curious. Best known
for his persistent litigation in the Jain hawala case, Narain faces contempt
proceedings for publishing a story alleging that a judge of the Jammu and
Kashmir High Court, Justice T.S. Doabia, had favoured the wife and
mother-in-law of Chief Justice Anand in a land acquisition case in Madhya
Pradesh. This refers to the year 1995, when Justice Doabia was serving on
the Gwalior Bench of the Madhya Pradesh High Court.
Narain has sought to be excused from personal appearances at the Jammu and
Kashmir High Court in Srinagar on grounds of personal safety. He has been
unable to respond to summons from the Jammu Bench of the court because of
the unsettled conditions there and the prospect of frequent disruptions and
adjournments. As a final recourse he has questioned the jurisdiction of the
High Court. But rather than deal with these questions, the High Court
recently declared Narain a "proclaimed absconder" and ordered non-bailable
arrest warrants against him. He now faces the threat of his property being
confiscated and auctioned by the court and leads the precarious life of a
fugitive. "Even during the hawala days, I had never faced such harassment,
tension and persecution", he says. "The court's objective seems to be to
harass and humiliate, rather than ascertain the truth".



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