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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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