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Freedom Of Dissent Vis-à-Vis Contempt Of Court

By Biswapriya Kanungo & Trijeeb Nanda

29 December, 2015

The initiation of criminal contempt proceeding vide an order dated 23rd December 2015 by an Hon’ble single judge bench of Bombay High Court, Nagpur Bench, against Booker prize winning writer Arundhati Roy, has again evoked a debate on the laxmanrekha of both freedom of speech and expression and contempt power of the court in our democratic constitution.

The Hon’ble single judge bench dismissed the bail application of a 90% disable wheelchair user academician, Dr. G.N. Saibaba, allegedly involved in unlawful activities as contemplated in one of the most draconian laws of the democratic country, like India, i.e., The Unlawful Activities Prevention Act. At the same time, while deciding the bail application of Dr. Saibaba, the court directed as “Issues notice to the Author Arundhati Roy for action for contempt of court retainable on 25.01.2015”.

The hon’ble judge also recommended to the hon’ble Chief Justice of Bombay High Court for its reference to a larger bench in light of a case decided by the Bombay High court in Lawyers’ Forum for General Utility and Litigating Public vs. State of Maharashtra and others.

It is not in dispute that the court enjoys ‘Contempt Power’. At the same time, a citizen has a fundamental right guaranteed under Article 19(1) (a), i.e., freedom of speech and expression, which is subject to only “reasonable restrictions” as provided under Art.19 (2) of the constitution of India.

In the instant case, the hon’ble single judge bench, did not dispute the issue of parity which was raised by Mrs. Roy in her article published in the “Outlook”. The author with her lucid writing method cited some examples of bail of Babu Bajarangi who was convicted for life imprisonment for his conspiratory role in 2002 Naroda Patiya massacre in which 97 people were murdered, was released on bail for an urgent eye-operation. Another convict Maya Kodananai, a former minister of the then Modi government in Gujarat, was convicted as a kingpin in Naroda Patiya massacre and sentenced to 28 years imprisonment, but her sentence was suspended. The author in her article also raised the matter of Amit Shah, the then minister of Gujarat in Modi Government, who was accused in a ‘fake encounter’, in which three persons were brutally murdered. Here, it’s pertinent to note that the accusation against Amit Shah was punishable with death; where as accusation against Dr. Saibaba is not punishable with death.

It is a fact that in each case grant of bail or acquittal or conviction is made on the basis of facts and evidence placed before the court. But, the executive with its agency and instrumentalities enjoys the sole authority to collect materials and to place it before the court as facts and evidence. Where, it’s a fact that, the ‘proved guilty’ persons belonging to a privileged section get bail like Maya or subsequently acquitted like Salman Khan or the accused like Amit Shah are exonerated from all the accusations. At the same time poor, tribals, dalits and also persons of dissent politics, are either liquidated by the police, or face harassment in the illegal police custody or even languish in jails as a part of pre-trial punishments.

Questioning the oppressive and suppressive strategy of the executive including the Central Government, State Governments, Police, Para-military forces and even Army and condemning it in strong words, does not amount to any offense under any law of our country. The claim for parity in criminal justice system and criticizing the patent disparity does not appear to be coming beyond the laxmanrekha of freedom of speech and expression.

We have a strong feeling that the contempt issue will be dealt by a larger bench of higher judiciary, in a just, proper and fair procedure established by law. This legitimate expectation flows from the observation of the Apex court on State of Maharashtra & Ors vs. Sangharaj Damodar Rupawate & Ors on 9 July, 2010 on laxmanrekha of freedom of speech and expression. The same may be read as follows

“The effect of the words used in the offending materials must be judged from the standards of reasonable, strong minded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probabilities of consequences of writing”

However, the single judge in the instant case passed his remarks against Ms. Roy as, “the language used by the author in her article against the government and the police machinery is as nasty as it could be and one really wonders whether the same would befit to the prestigious awards the author is said to have own. Calling the government and police as being afraid of the applicant, “abductor”, “thief” and the magistrate from a “small town”, demonstrate the surly, rude and boorish attitude of the author in the most tolerant country like “India”.

The anger of single judge against Ms. Roy is manifested in the observations as, “this court is also surprised that despite the intemperate and humiliating language used against the central government, the state government, the police machinery and the armed forces, they have not taken any action against the author who, in the name of freedom of speech, is exploiting the situation”.

It is really surprising that although it is claimed that there is tolerance in our country, the dissent views of an author is condemned by the single judge in which she had no opportunity to plead for her defense. The extent of dissent permitted is the parameter to evaluate the democraticness of a polity. Right to dissent is guaranteed as fundamental right under Art.19 (1) (a), which is subject to the reasonable restriction enumerated under Art.19 (2) of the Constitution of India.

It is worthwhile to mention here that Mrs. Roy’s article, which has been considered as interference in the administration of justice and scandalizing the court, was published in Outlook on 12 May 2015. Subsequently, The Hindu reported the ailing health condition of Dr. G N Saibaba on 08 June 2015, basing on which Mrs. Poorniman sent an email to the hon’ble Chief Justice of Bombay HC. The principal division bench of Bombey HC suo moto considered the e-mail as PIL and granted interim bail to Dr. Saibaba. We agree with the editorial of the Hindu that while safeguarding the judiciary’s reputation and dignity, courts of law should not be seen as stifling free comment and suppressing political dissent. The power of the contempt should be a shield against those who are willfully subverting justice, but not for critics against the state.

The last but not the least as our apex court has made an observation in Gajanan Visheshwar Birjur v. Union of India and Ors decided on 12th July 1994, we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression- the only limitation being a law in terms of clause (2) of Art.19 of the constitution. Thought control is alien to our constitutional scheme. To the same effect are the observations of Robert Jackson, J. in American Communications Association v. Douds with reference to the U.S. Constitution:

“Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.”


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