The Supreme Court held Arundhati Roy guilty of contempt of court for criticizing one of its judgments and sentenced her to one day in prison. However, Roy's criticism was an exercise of her constitutional right to free speech and a way to hold the judiciary accountable to the people. While the court has the power to punish contempt, it also needs to balance freedom of speech and tolerate public scrutiny and dissent to maintain its reputation and credibility as a democratic institution. By convicting Roy, the court may have overstepped and set a troubling precedent of intolerance towards criticism.

1. Commentary
Accountability of the undergo three months’ imprisonment.
Arundhati Roy was sent to Tihar jail. She
spent a day there and came out after paying
Supreme Court Rs 2,000.
The ground of contempt that is known
as scandalising the court has fallen in disuse
in most of the advanced countries and it
Arundhati Roy Case has not been used in England during the
entire 20th century. In all democratic
countries, the space of judicial review has
Can a citizen of India not criticise the Supreme Court’s decisions? expanded and it has acquired a political
Can she not criticise the procedures and management of the dimension. Criticism of judicial decisions
court? Is the court not supposed to be accountable? How will its and of the judicial system is necessary to
accountability be enforced if it were made absolutely immune reinforce its accountability to the people.
from public criticism? What did Arundhati Roy say which
infuriated the court? In her affidavit she
said:
S P SATHE the decision of the court was severely On the grounds that judges of the Supreme
criticised. A complaint was made against Court are too busy, the chief justice of
A
rundhati Roy’s conviction and Medha Patkar, advocate Prashant Bhushan India refused to allow a sitting judge to
punishment for contempt of court and Arundhati Roy by some lawyers al- head the judicial enquiry into the Tehelka
shows that despite its doctrinal leging contempt of court and the court scandal, even though it involves matters
activism on human rights, the Supreme issued a notice asking why they should not of national security and corruption in the
Court of India is still way behind the times be punished. All the three respondents highest places. Yet when it comes to an
in balancing freedom of speech and con- denied that they had committed any con- absurd, despicable, entirely unsubstanti-
tempt of court. Action against Arundhati tempt and asserted that they had a right ated petition in which all the three respon-
must be seen in the context of the decision to criticise the judiciary and its decisions dents happen to be people who have
of the Supreme Court in NBA vs India in in exercise of their freedom of speech publicly – though in markedly different
ways – questioned the policies of the
which the court permitted the concerned guaranteed by the Constitution. When that
government and severely criticised a re-
state governments to raise the height of the matter was heard, it was revealed that the cent judgment of the Supreme Court, the
Sardar Sarovar dam up to 90 ft. That petitions were frivolous, they suffered from court displays a disturbing willingness to
decision came in 1998 after the work on various procedural flaws, and none of the issue notice.
the dam had remained stayed on the court’s charges made against any of the three It indicates a disquieting inclination on the
order since 1994. It came as a great dis- respondents could be proved. The court part of the court to silence criticism and
appointment to Narmada Bachao Andolan had to concede that had its registry care- muzzle dissent to harass and intimidate
(NBA) and its sympathisers because a rise fully scrutinised the petition, perhaps even those who disagree with it. By entertaining
in the height of the dam meant submer- a notice might not have been issued. The a petition based on an FIR that even a local
gence of more villages and displacement three persons were therefore acquitted. But police station does not see fit to act upon,
of thousands of more people from their the court took suo motu notice of the the Supreme Court is doing its own repu-
homes. Since even those displaced earlier contemptuous statements contained in tation and credibility considerable harm.
had not been adequately rehabilitated, what Arundhati Roy’s affidavit and issued a Arundhati had said that for “the petition-
would be the fate of such additional dis- fresh notice of contempt (see S P Sathe, ers to attempt to misuse the Contempt of
placed persons? The decision was severely ‘NBA Contempt of Court Case’, EPW, Court Act and the good offices of the
criticised and NBA undertook campaigns November 24, 2001, p 4338). Supreme Court to stifle criticism and stamp
to educate the people about the harmful Arundhati appeared and defended what out dissent, strikes at the very roots of the
effects of the court’s decision. Medha she said in her affidavit. She asserted that notion of democracy”. This should make
Patkar, the leader and Arundhati Roy, a as a citizen of India she had a right to it clear that her complaint was not that the
Booker Award winner and sympathiser of criticise the decision of the Supreme Court, court was motivated but that the court
NBA, criticised the judgment. They were this being part of her fundamental right allowed itself to be used by those moti-
served a notice for contempt. The judges to freedom of speech. She had absolutely vated to stifle criticism and suppress dis-
were doubtless offended by Roy’s sarcas- no intention to commit contempt of the sent. The conclusion of the court that she
tic references to them in her article in a court and what she said did not amount had imputed motives to the court was
news magazine but decided to drop the to contempt. The court held her guilty of therefore rather hasty. She honestly be-
matter after giving an admonition. contempt and sentenced her to one day’s lieved that the decision of the Supreme
NBA organised a ‘dharna’ in front of the imprisonment and a fine of Rs 2,000, Court in the NBA case had done a great
Supreme Court and in a meeting held there failing to pay which she would have to harm to the displaced people. She pointed
Economic and Political Weekly April 13, 2002 1383

2. out various examples of judicial decisions did not say that there was judicial dicta- Arundhati Roy had no personal axe to
which, according to her, had “materially torship. She only said that if the courts grind. She spoke for a cause which she
affected, for better or for worse, the lives became immune from public criticism, they thought was important and needed her sup-
and livelihoods of millions of Indian citi- could usher into a dictatorship and since port. Should these things not count while
zens”. She then says that: any dictatorship is bad, judicial dictator- trying a person for contempt? If Shiv-
An activist judiciary, that intervenes in ship would also be bad. shankar’s judicial belonging elicited greater
public matters to provide corrective to a While surveying the previous decisions, tolerance of his views, Arundhati Roy’s
corrupt, dysfunctional executive, surely the court distinguished Shivshankar’s case altruistic intentions also deserved such
has to be more, not less accountable. To in which harsh criticism of the judiciary tolerance. Moreover, the court was rather
a society that is already convulsed by was held not to be contemptuous. In patriarchal in condescendingly referring to
political bankruptcy, economic distress and Namboodripad’s case, he had been con- her as a ‘woman’ whom they treated le-
religious and cultural intolerance, any form victed for contempt for a speech which niently by giving one day’s punishment.
of judicial intolerance will come as a
was a pure theoretical statement on the role Could they not have made it more sym-
crippling blow. If the judiciary removes
itself from public scrutiny and account- of the judiciary from a Marxist perspec- bolic by sentencing her to imprisonment
ability, and severs its links with the society tive. It appears that the fact that Shivshankar till the rising of the court while simulta-
that it was set up to serve in the first place, was a former judge of a high court and later neously declaring that the court had risen?
it would mean that yet another pillar of a minister in the central government made By convicting her and sentencing her, the
Indian democracy will crumble. A judicial his case different from that of court has certainly not covered itself with
dictatorship is as fearsome a prospect as Namboodiripad. Freedom of speech can- glory. A more tolerant and more sensitive
a military dictatorship or any other form not be greater for one who has been a judge but not sentimental court would doubtless
of totalitarian rule. than for one who is a citizen earn greater public admiration. EPW
What was contemptuous in this? Did she
say that the Supreme Court was motivated
with the desire to harass her and suppress
her dissent? If her entire statement is read,
it is clear that her statement was made in
the context of the petition that had earlier
been dismissed by the court for being
frivolous. Did the court, though inadvert-
ently, not allow itself to be used by the
petitioners for their nefarious purpose of
suppressing criticism and repressing dis-
sent? Can a citizen of India not criticise
the court’s decisions? Can she not criticise
the procedures and management of the
court? Is the court not supposed to be
accountable? How will its accountability
be enforced if it were made absolutely
immune from public criticism? Even what
she said regarding Tehelka was a mere
criticism of the priorities of the court. How
does such criticism erode the reputation
of the court? Is the reputation of the court
so fragile that it would be lost by mere
criticism of its working? Despite criticism
of several judgments in the past (the most
significant being the emergency decision
in A D M Jabalpore v Shukla), the court’s
reputation has not been affected. People
still have faith in the judiciary which is
obvious from the fact that whenever any
scam takes place or a mayhem occurs,
people ask for an enquiry by a judge.
Reputation of the Indian judiciary is cer-
tainly high in comparison with the repu-
tation of the other organs of government.
But it can remain so only if it is constantly
subjected to people’s ombudsmanning. If
the courts adopt an attitude of being a holy
cow, they will not know how they are
evaluated by the people. Arundhati Roy
1384 Economic and Political Weekly April 13, 2002