While
the judgement is awaited on the contempt case against Ms Roy, the
whole episode raised a few questions which need nation wide debate.
As Mr. Shanti Bhushan argued the Freedom of Speech was paramount under
the Indian Constitution and could only be subjected to 'reasonable'
restrictions for Contempt of Court. It is universally accepted that
the Courts and their judgements could be criticised in the most trenchant
terms. Voicing one's perception in an affidavit surely can not be
said to be contempt. The Additional Solicitor General Altaf Ahmed
who appeared as amicus submitted that the Freedom of Speech was subject
to the law of the Contempt. The reader can easily appreciate the conflict
that this case has thrown up. If there is a conflict between contempt
of court and freedom of speech, which one should be given importance
in a democracy? Can an individual's opinion bring down the dignity
of the court? On the other hand slapping contempt notice even to one
individual for his/her opinion would stifle the freedom of speech.
As Ms Roy says, "if a criticism against the Court is random and unfounded,
it will automatically rebound on the reputation and credibility of
the individual who leveled it. On the other hand, if it is valid,
the court can not hope to restore its dignity by punishing or silencing
the critic".
The Contempt of Court law is needed, as otherwise there would not
be any order in the society. But this should be restricted only to
violating the court's judgement or proceeding with an issue while
the case is sub-judice. These are undoubtedly disrespectful actions
and have the potential to undermine the Court's power and dignity.
But airing one's opinion on a court judgement should be treated as
fundamental right. They can not lower the dignity or power of the
Court. If it is so, when the judgement of a lower court is revered
in the Supreme Court or even in the Supreme Court when the judgement
of a single judge is reversed by a bench the dignity of the judiciary
is lowered.
The law is not a mathematical formula that would give the same answer
if the input data is same. It requires interpretations and the interpretations
can go wrong as after all interpretations are based on the context,
ability to interpret, and information available at any point in time.
Above all, interpretations are made by the Judges and they are also
human-beings. Erring is human. Even the judges would have their personal
philosophies, affiliations and biases and these could influence the
interpretations. As these can not be contested against, analysis of
judgement is very much part and parcel of freedom of speech. For want
of any better solution or way out, a civilised society has to by guided
by few factors and one amongst them is the "opinions" of the Judges
which are formed based on the set of guidelines specified in the rule
book and constitution. They are simply "opinions' but considered as
final verdicts for want of any better informed conclusions. If this
is not true, why is there a provision to register a "minority judgement".
If they are not opinions based on individual interpretations, all
the judges in a bench should arrive at the same conclusion. Where
is the question of minority verdict? The lack of compulsion to arrive
at a consensus verdict itself substantiates the above mentioned arguments.
Questioning the judgement or analysing a verdict should not be viewed
as contempt of court. At the same time, while one can question a verdict,
till redressal is obtained legally, one has to follow the operative,
majority judgement.
Are we barred from commenting on the court and expressing our perceptions
of the motivations of the court even if such comments are bonafide
or justified? In a democracy every institution is subject to political
scrutiny and criticism? The courts and judges can not be above and
beyond this scrutiny. Our judiciary should be made completely accountable
and it is important when it is vested with powers to oversee the proper
functioning of other pillars of the democracy in accordance with the
Constitution and the Rule of the Law. There should be a proper mechanism
and procedure to declare a criticism to be contempt of court. In the
CRL No. 10 against Arundhati Roy, the Court barred the Press and the
members of the public from the hearing. Can the court behave like
this without assigning a good reason? When the country is facing religious
and other forms of intolerance, it would be a last straw on the camel's
back if the judiciary becomes more and more intolerant to the criticisms
against it.
Nowadays the judges do not confine themselves to the issues before
them. While delivering judgements they go beyond issues and have used
the occasion to put their seal of approval or biases. 
The
classic instances in the recent past include the harsh criticism of
the Madras High Court Judge Ashok Kumar in dealing with the arrest
of opposition leaders in Tamilnadu and the Blaco disinvestment case
where the Court went on to approve and applaud the entire disinvestment
policy of the government. In the case of Sardar Sarovar case, the
court went on to extol the virtues of large dams even in the absence
of this issue being before it. The Judiciary should evolve an in-house
system of self-monitored accountability. Otherwise it would only breed
sloth, arrogance and abuse of power. It is simple logic that too much
of power without accountability is not good. In a democracy like ours,
every institution is playing its role on behalf of the people. Hence,
the people should have the right to scrutinize, criticise and comment
upon the actions of the judiciary. Every institution can go wrong.
The Chief Justice of India said so recently in Kerala. If he as a
citizen remarked against the judiciary, would the Court slap a Contempt
of Court notice on the Chief Justice of India? As mentioned earlier,
judiciary is peopled by judges who are also human. No one can claim
to be impeccable. Even the judges can occasionally be motivated by
considerations other than an objective view of law and justice. Sometimes,
judges can be guided by their own personal ideology, affiliations,
predilections, biases and even by nepotistic considerations. If it
is not true, there should not be a provision in the law to ask for
the change in the judge even half way through a trial. Academic scholars
have attempted jurisprudential analysis wherein they try to understand
how the political views of individual judges have altered the course
of interpretation of the law. Such studies would necessarily involve
an attempt to understand and discuss the motivation of judges and
how this has affected their judgements and thus, the development of
Law. Even if one goes by the verdict of the Supreme Court in Sardar
Sarovar Case, obviously the minority verdict delivered by Justice
Bharucha would have been guided by his philosophy of development,
ecological well-being, and the understanding of the ground reality
which was contrary to the views of judges who delivered the majority
verdict. If such discussions were prohibited on the grounds of contempt
of court, the entire analysis of the judiciary would become sterile
and meaningless.
It is unfortunate that even the "activist" Indian press is intimated
by the Contempt of the Court law to write and discuss on the state
of affairs. The fear of harassment led to this situation and this
is not good for our democracy. Contempt of Court should not encompass
anything and everything against the judges and the Court. As suggested
earlier in this article, only the violation of a judgement or proceeding
with an issue while it is sub-judice should be considered contempt
of court.
In the last years (2001) Republic day of Speech, President K.R. Narayanan
specifically called upon the judiciary to take special care of the
fragile communities i.e. Schedules Castes and Scheduled Tribes. He
went on to add that "the developmental path we have adopted is hurting
them, the marginalised, the SCs and STs, and threatening their very
existence". Considering the fact that these remarks of the President
found place in his Republic Day speech delivered within 100 days of
the Supreme Court verdict on the Sardar Sarovar Case, did he criticise
the judgement and if so would a contempt petition be issued against
him? In the case of a conflict between the Law of Contempt and the
Right to Speech, the fair thing for the court would be to err on the
side of protecting the Freedom of Speech. Ina true democracy contending
ideas, dissenting opinions, and pluralistic views should be freely
voiced if not heard. It is hoped that 6th March 2002 would go down
in the history as a day that strengthened our free democracy and not
as a day that stifled our democracy.
