Ms
Roy recalled the statements of the then Law Minister Shiv Shankar
in the late 80s against the Supreme Court and also of the inaugural
address of the Chief Justice of India in a National legal Workshop
very recently in Kerala wherein he said that "20% of the judges in
this country across the board may be corrupt, and that they bring
the entire judiciary into disrepute". Ms Roy questions whether the
statement of the Chief Justice be considered Contempt of Court wherein
he directly accused the black side of our Judiciary. If the statements
of Shiv Shankar a decade back and the statement of the Chief Justice
was permitted, what Arundhati Roy indicated in the controversial three
paragraphs of her affidavit was not at all a direct criticism of the
judiciary or the judges even by the stretch of imagination. All that
this case suggests is that lesser mortals can not raise a voce against
the Supreme Court. Contrary to this reality, the judgement claims
that "whoever the person may be, however high he or she is, no one
is above the law notwithstanding how powerful or how rich he or she
might be". Whereas, with regard to Shiv Shankar's statements, the
court ruled 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". This does not go with the statements
in the verdict-"all citizens cannot be permitted to comment upon the
conduct of the Courts in the name of fair criticism, which if not
checked would destroy the institution itself". Let us pose a question
as to whose derogatory statement would be given benefit of doubt (in
favour of the Court) by the common citizen - would they totally believe
the statement of Chief Justice of India (CJI) and the Law Minister,
who would have more access to the internal details of the functioning
of the judiciary, or the statements of Arudhati Roy-like activist?
In the humble opinion of this author, if there could be an erosion
of public confidence, it would be accomplished more by the statements
of relevant insiders - in this case CJI and the Law Minister because
people would think that they make their statements based on the facts
known to them. If the Four Pillars of democracy is truly "By the People
and for the People", whose confidence is lost in whose eyes? Because,
in a democracy the citizen is one and all.
In the three "objectionable" paragraphs she had expressed her mind
and honest impression based on what happened earlier to the Contempt
petition. The Tehelka case and the refusal of the Chief Justice to
allow a sitting judge to head the judicial enquiry into that scandal,
the contempt petition (CR) No. 2/2001 which was entertained by the
Court Registry in spite of the fact that the allegation in that petition
was found to be unfit by the local police station to act upon, the
protest of Ms Roy along with Medha Patkar and NBA, against the Supreme
Court Verdict in the Sardar sarovar Case are all known to the entire
country and they are matter of facts. Based on these facts if Ms Roy
has framed her opinion and expressed her honest impression, not in
a public meeting or in a magazine article but in an affidavit tot
he Apex Court, how could it bring down the dignity of the Court and
the Judges? Unfortunately, even the truth as defense is not allowed
in the Contempt of Court law. All right thinking people should question
this. If the truth is allowed as a defense in a Civil case, why not
in a Contempt case?
If the Parliament and Executive wings of democracy can be criticized,
the Judiciary should also subject itself to comments and criticism.
Only by subjecting itself to criticisms and scrutiny, the judiciary
can earn and live up to its dignity and definitely not on the pain
of criminal contempt. As Roy predicts, "the pain of contempt if at
all would prove to be destructive of the democratic principles on
which our constitution is based". Sadly, our CJI has remarked, "the
most powerful Institution in the country is the least accountable"
and it goes without saying that this is highly dangerous and detrimental
to our Democracy. It would only lead to Judicial Tyranny.
The judgement also contains words like "…showing the magnanimity
of law, by keeping in mind that the respondent is a woman, and hoping
that better sense and wisdom shall dawn upon the respondent…". Hope
the progressive women in this country did not take it offense of these
words, which were pronounced just two days before the "International
Women's Day". Why should the law distinguish between a man and a woman
when it comes to delivering sentence? Irrespective of our views with
regard to the causes that Ms Roy is fighting for, it is a duty of
all concerned citizens to help in the cause of averting any possible
danger to our Freedom of speech, a fundamental right assured by our
Constitution due to this all powerful law - Contempt of Court. This
author suggests the law ministry, the judiciary, and the scholars
in the field of law to assess the impact of this law on our freedom
of speech after Independence. Also, the analysis should be done to
see how many instances it was resorted to by the judges to explain
their position and how many times it was used as an instrument of
objection by the Judges rather than to defend their positions. Also,
sociologists can assess the impact of this law in maintaining the
dignity of the Judges and the Judiciary. These analysis would add
value to the debate on this law and hopefully would lead us to a better
position than what we are today. Without becoming the subservient
of our emotions, the activists in different walks of our social life
should take their efforts forward while not antagonizing our Court.
As a matter of fact and reality, the suggestions with regard to this
law need to be considered as a reform by the judiciary, if all our
efforts have to bring fruit. Otherwise, they would remain at the level
of excellent articles and debates. In that sense, one ahs to carry
the confidence of the judiciary along if a reform has to take place
and there is no meaning in locking horns with the Judiciary and the
Judges. As a late thought, even Ms Roy might accept the suggestion
that she could have done more to this cause by her excellent literary
skills (in disseminating her views) than by the pain and the struggle
that she went through in defending those three paragraphs in her affidavit.
Whatever may be our personal views with regard to the way Ms Roy
has been fighting for this cause, It is very important that the nation
supports her, especially the Press in shaping the views of the nation.
What she fought for is not for her cause alone. We should all understand
and appreciate this. The job of the Press does not end by writing
an editorial in favour or against her or by giving sarcastic titles
to her arrest episode. The Press can do it while maintaining the decency
and courtesy towards the Court. If it does not rise upto the occasion,
the India's Press would be viewed as weak and its hue and cry for
more freedom would not be taken seriously by the public.
We would discuss more details on this issue in the forthcoming weeks
and hopefully those who are lukewarm to Ms Roy's efforts at this point
of time would turn to be staunch support of her cause.
-To be Continued
