Accountability sc epw

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  • 1. CommentaryAccountability of the undergo three months’ imprisonment. Arundhati Roy was sent to Tihar jail. She spent a day there and came out after payingSupreme 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 itArundhati Roy Case has not been used in England during the entire 20th century. In all democratic countries, the space of judicial review hasCan a citizen of India not criticise the Supreme Court’s decisions? expanded and it has acquired a politicalCan she not criticise the procedures and management of the dimension. Criticism of judicial decisionscourt? Is the court not supposed to be accountable? How will its and of the judicial system is necessary toaccountability 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 ofA 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 mattersactivism on human rights, the Supreme issued a notice asking why they should not of national security and corruption in theCourt of India is still way behind the times be punished. All the three respondents highest places. Yet when it comes to anin 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 haveof 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 thewhich 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, theSardar Sarovar dam up to 90 ft. That petitions were frivolous, they suffered from court displays a disturbing willingness todecision 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 theorder since 1994. It came as a great dis- respondents could be proved. The court part of the court to silence criticism andappointment 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 entertainingin the height of the dam meant submer- a notice might not have been issued. The a petition based on an FIR that even a localgence 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 ofplaced persons? The decision was severely ‘NBA Contempt of Court Case’, EPW, Court Act and the good offices of thecriticised and NBA undertook campaigns November 24, 2001, p 4338). Supreme Court to stifle criticism and stampto educate the people about the harmful Arundhati appeared and defended what out dissent, strikes at the very roots of theeffects of the court’s decision. Medha she said in her affidavit. She asserted that notion of democracy”. This should makePatkar, the leader and Arundhati Roy, a as a citizen of India she had a right to it clear that her complaint was not that theBooker Award winner and sympathiser of criticise the decision of the Supreme Court, court was motivated but that the courtNBA, 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 shetic references to them in her article in a court and what she said did not amount had imputed motives to the court wasnews 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 greatSupreme Court and in a meeting held there failing to pay which she would have to harm to the displaced people. She pointedEconomic 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 towhich, according to her, had “materially torship. She only said that if the courts grind. She spoke for a cause which sheaffected, 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 whilezens”. 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 shesay that the Supreme Court was motivatedwith the desire to harass her and suppressher dissent? If her entire statement is read,it is clear that her statement was made inthe context of the petition that had earlierbeen dismissed by the court for beingfrivolous. Did the court, though inadvert-ently, not allow itself to be used by thepetitioners for their nefarious purpose ofsuppressing criticism and repressing dis-sent? Can a citizen of India not criticisethe court’s decisions? Can she not criticisethe procedures and management of thecourt? Is the court not supposed to beaccountable? How will its accountabilitybe enforced if it were made absolutelyimmune from public criticism? Even whatshe said regarding Tehelka was a merecriticism of the priorities of the court. Howdoes such criticism erode the reputationof the court? Is the reputation of the courtso fragile that it would be lost by merecriticism of its working? Despite criticismof several judgments in the past (the mostsignificant being the emergency decisionin A D M Jabalpore v Shukla), the court’sreputation has not been affected. Peoplestill have faith in the judiciary which isobvious from the fact that whenever anyscam 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 constantlysubjected to people’s ombudsmanning. Ifthe courts adopt an attitude of being a holycow, they will not know how they areevaluated by the people. Arundhati Roy1384 Economic and Political Weekly April 13, 2002