A case for a new approach
A look at two court cases reflecting two contrasting approaches to the subject of contempt of court. One upholds free speech, the other stymies honest criticism in the name of judicial dignity.
In February 1999, the Supreme Court lifted a fouryear stay on further construction on the Sardar Sarovar Dam across the Narmada. In an article published in Frontline (“The Greater Common Good”, Cover Story, May 22, 1999) and Outlook, the writer Arundhati Roy criticised the Supreme Court’s decision. The article was later published as a book. The Gujarat government filed a petition in the Supreme Court contending that there should be a ban on the “publication of various matters in different newspapers, journals, and other media touching upon the matter under consideration of the court”. Chief Justice A.S. Anand and Justices S.P. Barucha and B.N. Kirpal scheduled hearings to determine whether contempt of court proceedings should be initiated against Arundhati Roy. (On March 6, 2002, a Supreme Court Bench comprising Justices G.B. Pattanaik and R.P. Sethi held Arundhati Roy guilty of criminal contempt of the Court and sentenced her to simple imprisonment for one day and imposed a fine of Rs.2,000.)
In an article called “Courts and contempt powers” in Frontline (April 15, 2000), A.G. Noorani called for a new approach to contempt cases in India in the context of the case against Arundhati Roy. The article is reproduced here.
courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambast the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending Dies Irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts... The House of Lords overruled the Court of Appeal... it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option.”
Hogg’s counsel admitted the factual error which was patent and inexcusable in a Q.C. (Queen’s Counsel). The Court of Appeal had given no decisions in gaming cases which were erroneous, nor one which was overruled by the House of Lords.
Compare Hogg’s censures to “some of the objectionable passages in the book The Greater Common Good by Ms. Arunadhati Roy”, which were quoted by Justice Anand in his judgment (paragraph 4; page 312). They read thus:
“I stood on a 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 motorised peanuts. I knew I was looking at a civilisation older than Hinduism, slated—sanctioned (by the highest court in 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 inquired 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, that 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 (amended in 1984) 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 an 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 have no formal title to their land and therefore cannot claim compensation anyway. Most tribal people—or let’s say most small farmers—have as much use for money as a Supreme Court Judge has for a bag of fertiliser.”
Ask yourself as to which of these two passages is sharper in criticism of the court, Quintin Hogg’s or Arundhati Roy’s? Hogg’s, by any test. He wrote in anger; charged the judges with “blindness”, with rendering a statute “virtually unworkable” by “unrealistic, contradictory and ... erroneous” decisions, also with failure to apologise though an apology was called for; and, instead, criticised all others. And all this was based on an admitted factual error.
His article concerned violations of the law on gambling. Her article was about peril to the lives and livelihood of thousands. Hogg wrote in anger from the comforts of his office. Arundhati Roy wrote in pain and anguish after visits to the site at no small discomfort. Even if her disavowal of any “disrespect” to the judges was not accepted, her sarcasm (“tender concern” of the judges) is nowhere as offensive as Hogg's attribution of
“blindness” to them. In the context, the “laugh” was not in scorn for the judges. It was a bitter laugh at the tragedy she found—the illiterate tribal people having no legal documents to claim compensation and who in any case, would have “as much use for money as a Supreme Court Judge has for a bag of fertiliser”.
To characterise the court’s decision to vacate the stay on further construction of the dam, whereby the entire place would be drowned by the waters of the reservoir, as one which “sanctioned” the result is no worse than similar censures of its decisions even by academic lawyers, indeed, by judges of the court itself—both serving and retired. The writings and speeches of Justice V.R. Krishna Iyer, a man of deep commitments, are replete with bitter censures.
FREEDOM OF SPEECH, NOT COURT’S DIGNITY
Now, compare the way the Court of Appeal handled the Hogg case with the manner in which the Supreme Court dealt with Arundhati Roy. Lord Denning said: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest... Mr. Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost. I hold this not to be a contempt of court, and would dismiss the application.” He did not hold it to be a contempt at all. The other two judges concurred. Thus a bench of three judges unanimously ruled that Hogg’s article did not constitute contempt. They did not rule it to be a contempt and forgave the contemnor out of magnanimity or after his apology, which was not called for in the first instance.
All three laid emphasis on freedom of speech, not the dignity of the court. The aspect of taste was deemed irrelevant. Salmon L.J. said: “It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty—freedom of speech, which our courts have always unfailingly upheld.
“It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits.” If “the limits” had been drawn narrowly, Hogg would have been found guilty. Salmon L.J. expressed the opinion that “he owes no apology, save, perhaps, to the readers of Punch for some of the inaccuracies and inconsistencies which his article contains”.
Edmund Davies L.J. was of the same opinion. “Whether despite his great learning and his distinction as a Queen’s Counsel, Hogg paid proper respect to the standards of accuracy, fairness and good taste when he was composing his Punch article may, unhappily, be open to doubt. But whether his article amounted to contempt involves different, and graver, considerations. For my part also, inaccurate though the article is now acknowledged to be in a material respect, I have no doubt that contempt has not been established, this application... My conclusions regarding the fairness and good taste of the article in question are immaterial, and I therefore refrain from revealing them.”
THE INDIAN CONTRAST
However, while the Court of Appeal referred to Hogg with conspicuous courtesy despite his false accusation of “blindness”, Justice A.S. Anand referred to Arundhati Roy sneeringly. One is not concerned here with the Narmada Bachao Andolan (NBA), which was a party in the litigation before the court. Arundhati Roy was not. On July 22, 1999, the court made an order in which it referred to statements by the NBA as well as to Arundhati Roy’s article and her book and said: “We have gone through the statements, the press releases, the article and certain portions of the book referred to above. Prima facie, it appears to us that there is a deliberate attempt to undermine the dignity of the court and to influence the course of justice. These writings, which present a rather one-sided and distorted picture, have appeared in spite of our earlier directions restraining the parties from going to the press, etc., during the pendency of the proceedings in this court.
“However, before we decide to proceed any further, we consider it proper to appoint an amicus to advise the court about the action, if any, which is required to be taken in this respect as also in respect of the writ petition itself.”
On October 15, 1999, the court delivered judgment after hearing the amicus and other counsel. After quoting the offending passages (reproduced above from para 4) Chief Justice Anand said (in para 5): “Ms. Arundhati Roy is not a party to the proceedings pending in this court. She has, however, made comments on matters connected with the case, being fully alive to the pendency of the proceedings in this court. 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” - violation of an order
which bound the parties, not those who were strangers to the proceedings.
FORMS OF CRIMINAL CONTEMPT
Criminal contempt may take any of these four forms. Contempt in the face of the court, for example, insulting the judge; publication prejudicial to a fair criminal trial or to civil proceedings; scandalising the court; and other acts which interfere with the course of justice. The instant case involved comments allegedly prejudicial to the Narmada case before the Supreme Court and “scandalising” the court (by denigrating it). All the forms must be tested on the anvil of the citizen’s fundamental right to freedom of speech and expression embodied in Article 19(1)(a) of the Constitution. Clause (2) permits the state to impose, by law, only “reasonable restrictions” on the right in the interests inter alia of “contempt of court”. It is now well settled that “the state”, as defined in Article 12, includes the judiciary and it is as much bound to respect the fundamental rights as the executive and the legislature. Clause (2) of Article 19 mandates the court to balance the competing values of free speech and judicial authority, with a tilt in favour of free speech.
In Britain, there has been no successful application of the charge of "scandalising the court" in the last 70 years; not since the New Statesman was hauled up for writing, very fairly, that Marie Stopes had no hope of a fair trial before Justice Avory, a Roman Catholic opposed to birth control, besides being a notoriously egotistic Judge. A noted authority holds that “the offence of scandalising the court is now so unimportant in practice that it may appear fruitless to spend much space in debating its justification” (Freedom of Speech by Eric Barandt; Oxford; 1985; pages 222).
Or, are we to lapse into “cultural relativism” with the Privy Council and hold that liberalism is all right for the whites but unsafe for us? Zahid F. Ebrahim's excellent article (Frontline, October 8, 1999) tellingly cites Commonwealth and other cases on this aspect. In 1998 the Privy Council noted in Gilbert Ahnee vs. D.P.P., in an appeal from Mauritius: “In England such proceedings are rare and none have been successfully brought for more than 60 years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court is greater on a small island.”
In the case of De Haes & Gijsels vs. Belgium, De Haes and Gijsels had published articles accusing four Belgian judges of bias and had been prosecuted for contempt in Belgian courts. The European Court of Human Rights ruled that “although Mr. De Ha es’ and Mr. Gijsels’ comments were without doubt severely critical, they nevertheless appeared to be proportionate to the stir and indignation caused by the matters alleged in their articles. As to the journalists’ polemical and even aggressive tone, which the court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas or information expressed but also the form in which they are conveyed.”
Article 10(2) of the European Convention on Human Rights permits restrictions by law on freedom of expression which “are necessary in a democracy” inter alia “for maintaining the authority and impartiality of the judiciary”. This mandates, as Article 19 (2) of our Constitution does, a balance between the two values.
LACK OF BALANCE
Chief Justice Anand’s judgment made not even an attempt to strike the balance; cited not a single case; is charged with anger and written in intemperate language unedifying in any judicial pronouncement, especially one of the apex court. No attempt was made to distinguish between the two forms of contempt and then establish where Arundhati Roy had gone wrong, as is evident in the introductory censorious para 5, quoted above. Neither factual inaccuracy nor bad taste is relevant. Nor was any statement of hers held up to establish either “charge” specifically.
This is what Chief Justice Anand wrote: “While hyper-sensitivity and peevishness have no place in judicial proceedings - vicious stultification and vulgar debunking cannot be permitted to pollute the stream of justice. Indeed, under our Constitution there are positive values like right to life, freedom of speech and expression, but freedom of speech and expression does not include freedom to distort orders of the court and present incomplete
“We do not fear criticism, nor do we resent it. For there is something more important at stake.”
and a one-sided picture deliberately which has the tendency to scandalise the court.” It is well settled that distortion of the court’s order cannot possibly amount to “scandalising” it.
He continued: “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 proceedings relating to resettlement and rehabilitation had shaped in this court and distorting various directions given by the court during the last about 5 years. The writings referred to above have the tendency to create prejudice against this court. She seems to be wholly ignorant of the task of the court. The manner in which she has given a twist to the proceedings and orders of the court is in bad taste and not expected from any citizens, to say the least.
“We wish to emphasise that under the cover of freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the court and bring it into disrepute or ridicule.”
Arundhati Roy had not “decided to use her literary fame by misinforming the public” or used “the cover of freedom of speech”. She simply exercised her right to freedom of speech. Her words went far because of her fame. The judge’s remarks reek of bad logic, bad law, bad English...
How can the passages from Arundhati Roy’s book quoted above possibly justify the charges levelled by the Chief Justice lumped together so indiscriminately—“vicious stultification and vulgar debunking”, misinformation, bad taste, misrepresentation, scandalisation of the court and distortion of the facts?
Chief Justice Anand ruled: “An offence of scandalising the court per se is one such qualification, since that offence exists to protect the administration of justice and is reasonably justified and necessary in a democratic society. It is not only an offence under the Contempt of Courts Act but is sui generis.” This ignores Article 19(2) and the ethos of free speech.
As for prejudice to a civil proceeding, that proceeding was in the apex court by judges of experience, not before a jury. Is the public to forbear from discussing the merits of the Narmada, meanwhile?
Section 5 of the English Contempt of Court Act, 1981 says: “A publication made as, or as part of, a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”
In Attorney General vs. English (1982), the House of Lords held that a Daily Mail article by Malcolm Muggeridge, which argued for a “Pro-life” candidate in a byelection and in so doing referred to an alleged practice among doctors of allowing deformed babies to die, was not in contempt of the contemporaneous trial of Dr Leonard Arthur on a charge of murdering a Down's
Syndrome baby. The Law Lords, who heard the case on appeal, echoed the Phillimore report by stating that what Section 5 was intended to prevent was the “gagging of bona fide discussion of controversial matters of general public interest merely because there are in existence contemporaneous legal proceedings in which some particular instance of those controversial matters may be in issue”. They found that although Muggeridge’s article was likely to create serious prejudice in Dr Arthur’s trial, it met the requirements of the Section 5 defence and was not, therefore, a contempt. In other words, they decided that the report was part of a bona fide discussion of a matter of public interest and the prejudice was merely incidental to that discussion.
DISQUIETING RECORD
The Supreme Court's record on this branch of the law over the years has been disquieting. Chief Minister of Kerala E.M.S. Namboodiripad was found guilty of contempt for calling the judiciary “an instrument of oppression” and the judges as ones “guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor” (AIR 1970 S.C. 2016). But Union Law Minister P. Shiv Shankar was let off despite his defamatory remarks against the Supreme Court specifically. “The Supreme Court composed of the elements from the elite class had their unconcealed sympathy for the haves; i.e. the zamindars” and “anti-social elements, i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court” (P.N. Duda vs. P. Shiv Shanker, AIR 1988 S.C. 1208).
The late H.M. Seervai pointed out the lengths to which Justice Sabyasachi Mukharji went to exonerate the Minister (Constitutional Law of India, Fourth Edn., 1991; Volume 1; page 75). The court also let off another influential, Mohammed Yunus. He had attacked its ruling in the National Anthem case. But he also said that the judge who held that its singing was not compulsory (Justice Chinnappa Reddy) “had no right to be called either an Indian or a Judge” (AIR 1987 S.C. 1451). Seervai remarked: “If a humble citizen had said of the Supreme Court” what Shiv Shanker and Mohammed Yunus had said, “the public familiar with the recent functioning of the Supreme Court would have had little doubt that the humble citizen would have been found guilty of contempt and punished after the Supreme Court gave an eloquent lecture on its duty to uphold the dignity of the Supreme Court and its Judges in high esteem” (ibid; page 765).
The court's recent practice of oral edicts to the press not to report the names of the judges who made observations during the proceedings is unconstitutional. The other practice, directing the parties not to ventilate their grievances in the press pending the proceedings, is sound in principle but needs to be qualified. What if the Chief Minister of Karnataka, S.M. Krishna, had spoken on the Alamatti dam, which exercised his State in the Assembly and the press had reported the speech? Neither he nor the press could have been hauled up. m