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The contempt notice against Arundhati Roy is yet another reminder of why this law must go

Even if one disagrees with Roy, the order of the Bombay High Court highlights the dangers to freedom of speech in the country.

The order of the Nagpur Bench of the Bombay High Court cancelling Professor GN Saibaba’s bail on medical grounds and issuing contempt notice to author Arundhati Roy for her article “Professor, POW” in Outlook magazine is an excellent illustration of all that’s wrong with criminal contempt punishable under the Contempt of Courts Act, 1971 and why it’s an affront to freedom of speech protected under the Constitution.

If one reads the order of Justice AB Chaudhari, it seems almost as if the bail has been denied to Prof Saibaba because of the article written by Ms Roy rather than the law or the merits of Prof Saibaba’s bail application. Indeed the most serious allegation against Prof Saibaba is described thus:
“the applicant who is an intellectual has used his intelligentsia [sic] for anti   national activities for which there is strong evidence against him as discussed.”

(If any reader can coherently parse that sentence and point to any laws or legal principles which justify the denial of bail on that basis, I would be most grateful since I have not been able to make sense of it.)

While discussing the grounds on which to deny bail to Saibaba, the Court spends a few pages extracting parts of Roy’s article and then goes into a completely tangential discussion of the contumacious nature of the article.  The order reads less like a dispassionate judicial order and more like the response of someone insecure and aggrieved by criticism. Of the several pieces of writing that were published across the country criticising the refusal to grant bail to Saibaba, why only Roy’s has been selected for special scrutiny by the Court, and on what basis is also not clear. What Roy has said in the piece about Saibaba’s pre-trial detention is no different, except in language and in severity, from what has been said by commentators in multiple pieces such as here and here.

Pure discretion

This is precisely the problem with criminal contempt laws in India as they stand. They are less a shield to defend the judicial institutions of the land, and more a weapon to harass and intimidate critics of court action. The Contempt of Courts Act, 1971, apart from seeking to punish those who disobey court orders or obstruct judicial proceedings, also seeks to punish those “scandalising” or “lowering the authority of the court”. While the first two categories of contempt (disobedience and obstruction) are fairly obvious and can be determined factually, it’s hard to see how the latter category is anything but pure discretion unrestricted by law.

The defences against a charge of criminal contempt are few and even truth is not an unqualified defence against a charge of criminal contempt. The truth is a defence to criminal contempt charges only if the Court is satisfied that the statement is in public interest and that statement has been made bona fide. A recent Constitution Bench judgment of the Supreme Court affirmed this position of law contained in the Contempt of Courts Act, 1971. The court will itself determine what the public interest in the statement is, and whether the person making such statement was acting in good faith. Therefore, the answer to the question “When does justifiable criticism cross into ‘scandalising’ or ‘lowering the authority of the court’?” is not a clearly articulated principle but a worrying “it depends”.

Alleging that a judge took the hospitality of certain organisations is not considered contempt of court but harshly criticising the judgment of a court in appeal is contempt of court. Demanding that judges adopt a code of ethics is not considered contempt but accusing them of harbouring a “classist bias” would amount to contempt of court. No two statements are obviously the same, but going through the case law, it is difficult to cull out any obvious principles or bright lines which should not be crossed in order to be guilty of contempt. Indeed the effect is to force critics to self-censor and restrain their thoughts for fear of facing criminal contempt.

Anachronistic provision

The net effect of the law of criminal contempt is that the Court is now the sole arbiter of what sort of criticism of itself is acceptable and what is not. It is (no pun intended) a judge in its own cause. Were the Government or a private citizen to claim such sole right to determine whether or not criticism of one’s actions is justified or not, such a claim would be denounced as being tyrannical or delusional. Yet, courts in India repeatedly assumed this power with little accountability as to its use.

No doubt the Constitution of India allows Parliament to make laws on “contempt of court” as a reasonable restriction to the right to freedom of speech and expression guaranteed under the Constitution. The Contempt of Courts Act, 1971 vesting such unbridled power on the court to punish for contempt, that too when court itself is the arbiter of what’s contempt and what’s not, is hardly a “reasonable restriction” that is necessary in the interests of administration of justice.

Whether or not one agrees with Roy or believes GN Saibaba deserves bail, the order of the Nagpur Bench of the Bombay High Court in Prof GN Saibaba’s case highlights the dangers to freedom of speech in the country posed by a law giving unrestricted powers to judges to punish for contempt. It is time for courts to understand that respect for the judiciary and its authority can’t be inculcated under the threat of contempt proceedings. It is perhaps also time for the legislature to consider removing this anachronistic provision in law from the books.

Alok Prasanna Kumar is Senior Resident Fellow at Vidhi Centre for Legal Policy.

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Hadi Teherani is best known for designing iconic buildings in Germany including the famous Dockland office in Hamburg and the Kranhaus in Cologne. But he’s also left his mark on the landscape of Abu Dhabi with the Zayed University, and has designed a luxury residence that will soon grace the skyline of Mumbai—Lodha Altamount. We spoke to him about the challenges of designing luxury living spaces in India.

Q. In your opinion, what is the definition of luxury specifically in the area of private residences? Is it a lot of fresh air, space and daylight? Is it the room composition? Or is luxury something completely different?

Hadi Teherani (HT): For me, luxury is first and foremost to have space, not just enough for what you need but enough space to really thrive. And luxury has always been defined that way. If you look at Art Nouveau houses, those rooms have incredible heights. So yes, space is definitely an important factor when it comes to luxury. In Europe people pay attention to every square metre and here in Mumbai it is the same. There are slums where 4 people live in one room and just across the street somebody is living by himself on 1000 square metres. Once you have space, luxury can be in the features, in using certain materials, and there is no limit. Some things, of course, are simply not available here: the luxury of fresh air and a clean sea. No matter how much money you are willing to spend, you cannot get those. Therefore, you are limited to what is available.

Q. Have you incorporated this concept of space into previous projects?

HT: Yes, in different ways, no matter if you are working on government-sponsored housing projects or in the luxury segment. Usually our projects are more in the luxury segment, where space is crucial. We are currently designing a building where luxury can already be sensed at the parking level. You reach with your car and you are already supposed to have the feeling that you’ve arrived at a hotel lobby. This is how far luxury has come. That the arrival in a garage already gives you the feeling as if you are coming to a palace—you get out of your limousine into this stunning lobby and this feeling continues as you go up into the apartment where you have a bathroom that is 20-30 square metres and not just 5-10. The idea of really designing your bathroom or kitchen has not yet reached India. Bathrooms are still rather compact and practical since the idea of spending quality time in your bathroom doesn’t seem to exist yet. Customers definitely do not request a spacious bathroom when we discuss their projects. For me, personally, a great bathroom is extremely important, as it is the first thing you use in the morning. Afterwards you go to work, and you come back home. But I believe the areas that you use most need to have enough space for you to move and thrive in.

Q. Do you have any role model in the field of architecture? Maybe a building or a person?

HT: The Bauhaus is still my role model. Back then they designed products for day-to-day life, affordable for the general population. But those products have become classics today like the lounge chair by Le Corbusier. Those were project works but Bauhaus thought further ahead. The idea was to give people light, air and space, and to free them from elements that were poorly designed and uncomfortable like big stucco ceilings. The focus needs to be light, air and sun. For them, architecture and product design were always very fluent concepts. Le Corbusier, for instance, designed fantastic buildings as well as whole cities, but on the other hand also designed furniture. Gropius had even designed a car once and furniture, too. This school of thinking has influenced me, and once you have all those “tools” and this way of thinking, you get very far. With this “toolbox” of modern design, you can create anything and influence society. The times back then aided this development; everyone was opening up, living in and with nature, not hiding away in little holes. And the world evolved from there. And today you can see they are daring even more spectacular things in Asia than they used to in Old Europe.

Q. You have already gained quite some experience in India. Is there something that you would define as a typical “Indian palate”, and if so, how does it differ from the international projects? You already mentioned the differences in bath and kitchen design, but are there, for instance, taboos like colours you wouldn’t use or something in room composition?

HT: I haven’t encountered anything like that. What I do experience is that many projects are influenced by religious thoughts and by Vaastu, something like Feng shui. So the master bedroom has to be in the south-west and the kitchen has to have a certain location. Those rules need to be followed exactly, no matter if it makes sense for the building or not. Here in Mumbai it’s a little more liberal but in other regions, Hyderabad for instance, every centimetre has to be exact as per Vaastu. Sometimes they want a dedicated room for pujas. All this changes while designing a project, of course. But overall the ground plans are not that different. The families might be bigger so houses and apartments are bigger as well, or they are trying to utilize each and every square metre and avoid hallways, for example.

Those projects are also in the centre of a lot of marketing. We are not used to that in Europe but here in Mumbai or even more in other cities like Bangalore, along the entire highway from the airport into the city you only see 50-metre-high billboards announcing new real estate projects. You don’t see anything else! And it’s very creative marketing with catchy headlines and slogans. That isn’t happening in Germany. One more difference: when designing upper class buildings in India, they require a maid or servant room, maybe a separate entrance from the staircase and so forth. Here, you can still afford having a maid. In Europe you might have someone coming by for three hours once a week but certainly not living in.

Q. Let’s talk about the Lodha Altamount. What was the challenge?

HT: The design of Altamount was strongly influenced by being a Lodha project and by its location. Next to Altamount stands a luxury highlight of architecture, the Ambani tower, the most expensive home in the world. How do you want to top that? The Ambani tower is very structural. It shoots through the air, it combines all sorts of crafts and structural design elements with gaps and open spaces. You can’t top that and definitely not with our type of design. That’s why we decided to hold back and instead develop a dark and sleek building. That type of building doesn’t exist a lot here in India. Usually buildings have many structural elements like beams and balconies. By creating a calm building in the skyline of Mumbai, we will make Altamount stand out. Plus, the top of the building is very unique. Many structures are either simply cut off straight or completed by a dome. We have two geometric pointy tops so that the building is properly completed and doesn’t look as if it could grow further. It has a head and feet and is finished. So for us to hold back was our way to stand out. It doesn’t devalue the building design in anyway. It is meant expressively in the sense of “less is more”. And the interior is of course very luxurious: it is designed through and through, there is the green car parking podium, each balcony has a mini pool. So all those luxury features are present but the architectural design is based on the idea of “less is more”.

Lodha Altamount (Mumbai) designed by Hadi Teherani.
Lodha Altamount (Mumbai) designed by Hadi Teherani.

Q. Luxury can drift into the eccentric, depending on the client. Have there been any projects that were very eccentric which you still accepted or projects that you had to turn down because they were too eccentric?

HT: As architects, we create a space. What happens, of course, is that people buy an apartment in a great contemporary building and then furnish it in a baroque style. But that freedom has to be there, of course, because we can’t also tell the client which curtains to use or clothes to wear. At a certain point our job is done. However, when it comes to public buildings, the public is supposed to benefit from, so I have to be strict and dictate. In private buildings you can leave it up to the individual but publicly I have a responsibility and cannot consider each and every taste. I have to do a clean job so that in the end every individual can find himself or herself in my design. Anyway, taste always stems from a certain upbringing, culture and environment, so I also have the duty to educate and that’s what I do with my projects. When a small child walks by a building, she recognizes when the proportions are right even if she has no idea about architecture. But if the proportions are off, the child will pick that up too, because every building also exudes energy, either of unease or comfort. So we have quite a big responsibility as well. I always say doctors have it easier than us. Their mistakes get buried, but our mistakes will always be there for everyone to see.

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This article was produced on behalf of Lodha by the Scroll.in marketing team and not by the Scroll.in editorial staff

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