Judges in their own cause - I

By Prashant Bhushan

ON OCTOBER 15, 1999, the Supreme Court, without even giving Arundhati Roy a notice or an opportunity to be heard - and therefore in violation of the principles of natural justice - proceeded to make the following remarks against her: ``Judicial process and institution cannot be permitted to be scandalised 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 provocation for the use of this rather strong language by the court were the following passages in her essay `The greater Common good', that the court took exception to: ``I Stood on the hill and laughed out loud. I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the opposite bank from where I could see, ranged across the crowns of low bald hills, the tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragile homes. I could see their fields and the forests behind them. I could see little children with littler goats scuttling across the landscape like motorized peanuts. I knew that I was looking a civilization older than Hinduism, slated-sanctioned (by the highest Court of the land) to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to submerge it.''

``Why did I laugh? Because I suddenly remembered the tender concern with which the Supreme Court Judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar dam) had enquired whether tribal children in the resettlement colonies would have children's parks to play in. The lawyers representing the government had hastened to assure them that indeed they would and what's more, there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect.''

``Who owns this land? Who owns its rivers? Its forests? Its fish? These are huge questions. They are being taken hugely seriously by the State. They are being answered in one voice by every institution at its command - the army, the police, the bureaucracy, the courts. And not just answered, but answered unambiguously, in bitter, brutal ways.''

``According to the Land Acquisition Act of 1894 the government is not legally bound to provide a displaced person anything but a cash compensation. Imagine that. A cash compensation, to be paid by the Indian government official to an illiterate tribal man (the women get nothing) in a land where even the postman demands a tip for a delivery! Most tribal people - or let's say most small farmers - have as little use for money as a Supreme Court judge has for a bag of fertilizer.''

I seriously doubt that any unbiased observer, even one unfamiliar with the controversy surrounding the Sardar Sarovar project, and even one who has not read her entire essay which provides the context and justification for these remarks, would consider them to be ``scandalous'' or ``contumacious violation'' or ``vicious stultification'' or ``vulgar debunking'', which pollutes the ``pure stream of justice'' of the Supreme Court. But then, that is the pronouncement of the highest court of the land. Who is to question its wisdom?

A year later, on October 18, 2000, came the final judgment of the Supreme Court on the Sardar Sarovar case by which the Narmada Bachao Andolan's petition was virtually dismissed along with a gratuitous lecture extolling the virtues of large dams, while making snide remarks against the NBA as being an organisation opposed to the development of India. On December 13, 2000, the NBA held a demonstration outside the Supreme Court in which the Court's judgment was criticised and denounced. Arundhati Roy attended the Dharna as an observer and supporter of the NBA, though she did not make any speech or raise any slogans.

In February 2001, the Supreme Court issued notice to Roy, Medha Patkar and myself for Criminal Contempt of Court on the basis of a petition filed by five lawyers who alleged that she along with Patkar and me had led this demonstration, shouted vulgar slogans against the Court, and had assaulted and threatened the petitioners.

The petition filed by the advocates had several fatal defects. First, the petition did not disclose the addresses of the petitioners or the respondents as required by the Supreme Court Rules. Roy's address was mentioned as ``Booker prize winner'', Patkar's as, ``Leader NBA'', and mine as ``Advocate Supreme Court''. The address of all the petitioners was mentioned as ``Bar Library No. 1''. Second, the petition was signed by only one of the petitioners though according to the rules it should have been signed by all five of the petitioners. Third, the affidavit in support of the petition was signed by only one of the petitioners though it purports to be on behalf of two of them. Lastly, the petition did not contain the consent of the Attorney-General or the Solicitor-General of India, which is a mandatory requirement of the Contempt of Court's Act. And that is quite apart from the absurdity of the charges of assault and threats made in the petition against us. Even the local police station had refused to register the FIR of the petitioners on these charges. Despite these defects, the Court entertained the petition and notices were issued, requiring Roy, Patkar and myself to be present in Court in person on every hearing of the case.

In these circumstances, Roy in her affidavit in reply, while asserting her right to be present at the demonstration and setting out the facts of what happened there, also expressed her indignation at such a petition being entertained at all by the Court. Her affidavit went on to say: ``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 criticised 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 considerable harm.''

On August 28, the Supreme Court dismissed the contempt petition of the lawyers, holding that it was grossly defective and coupled with the fact that even the police who were present at the dharna had refused to register the FIR of the petitioners, and in view of the abominable behaviour of the petitioners in Court, the allegations in the petition did not inspire confidence. However, the Court went on to hold that the above paragraphs of Roy's affidavit themselves amounted to contempt since they imputed improper motives to the Court. The Court has thus directed the issue of a second contempt notice on this basis!

It has always been accepted, even in pronouncements by the Supreme Court, that the Court and its judgments can be subjected to strong, even trenchant criticism. Is the same yardstick not available for comments on the use or abuse of the Court's powers of contempt? In the case of Arundhati Roy, the Court took offence at the fact that in her affidavit she had questioned the discretion of the Court.

(The writer is a public interest lawyer in the Supreme Court.)

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