7th March 2002
I stand by what I have said in my Affidavit and I have served the
sentence which the Supreme Court imposed on me. Anybody who
thinks that the punishment for my supposed 'crime' was a
symbolic one day in prison and a fine of two thousand rupees, is
wrong. The punishment began over a year ago when notice was
issued to me to appear personally in Court over a ludicrous charge
which the Supreme Court itself held should never have been
entertained. In India, everybody knows that as far as the legal
system is concerned, the process is part of the punishment.
I spent a night in prison, trying to decide whether to pay the fine or
serve out a 3-month sentence instead. Paying the fine does not in
any way mean that I have apologized or accepted the judgement. I
decided that paying the fine was the correct thing to do, because I
have made the point I was trying to make. To take it further would
be to make myself into a martyr for a cause that is not mine alone. It
is for India's free Press to fight to patrol the boundaries of its
freedom which the law of Contempt, as it stands today, severely
restricts and threatens. I hope that battle will be joined.
If not - in the course of this last year, I would have fought only for
my own dignity, for my own right as an Indian citizen to look the
Supreme Court of India in the eye and say, "I insist on the right to
comment on the Court and to disagree with it." That would be
considerably less than what I hope this fight is all about. It's not
perfect, but it'll have to do.
There are parts of the Judgement which would have been deeply
reassuring if it weren't for the fact that citizens of India, on a daily
basis, have just the opposite experience - "Rule of Law is the basic
rule of governance of any civilised, democratic polity... Whoever the
person may be, however high he or she is, no one is above the law
notwithstanding however powerful and how rich he or she may be".
If only!
The Judgement goes on to say "after more than half a century of
Independence, the Judiciary in the country is under constant threat
and being endangered from within and without". If this is true, would
the way to deal with it be to do some honest introspection or to
silence its critics by exercising the power of Contempt?
Let me remind you of the paragraphs in my Affidavit which were
held to constitute criminal contempt of court, that undermined the
authority of the Judiciary and brought it into disrepute.
"On the grounds that judges of the Supreme Court were too busy,
the Chief Justice of India refused to allow a sitting judge to head the
judicial enquiry into the Tehelka scandal, even though it involves
matters of national security and corruption in the highest places.
Yet, when it comes to an absurd, despicable, entirely
unsubstantiated petition in which all the three respondents happen to
be people who have publicly - though in markedly different ways -
questioned the policies of the government and severely criticized a
recent judgement of the Supreme Court, the Court displays a
disturbing willingness to issue notice.
It indicates a disquieting inclination on the part of the court to silence
criticism and muzzle dissent, to harass and intimidate those who
disagree with it. By entertaining a petition based on an FIR that even
a local police station does not see fit to act upon, the Supreme
Court is doing its own reputation and credibility considerable harm."
On the 23rd of December 2001, the Chief Justice of India, in an
Inaugural Address to a National Legal Workshop in Kerala, said
that 20% of the Judges in this country across the board may be
corrupt, and that they bring the entire Judiciary into disrepute. But of
course this did not constitute Criminal Contempt.
Now let me read you what a former Law Minister said in a public
speech some time ago: "The Supreme Court, composed of the
elements of the elite class, had their unconcealed sympathy for the
Haves i.e. the zamindars---anti-social elements i.e. FERA violators,
bride-burners and a whole horde of reactionaries, have found their
haven in the Supreme Court."
In this judgement, the Court says that the Law Minister's statement
was permissible because "the criticism of the judicial system was
made by a person who himself had been the judge of the High Court
and was the Minister at the relevant time."
However, they go on to say that "all citizens cannot be permitted to
comment upon the conduct of the Courts in the name of fair
criticism, which if not checked, would destroy the institution itself".
In other words, it is not just WHAT you say, nor its correctness or
justification, but WHO SAYS IT, which determines whether or not
it constitutes criminal contempt. In other words, the assertion
contained in the beginning of this judgement - namely: "whoever the
person may be, however high he or she is, no one is above the law
notwithstanding how powerful or how rich he or she might be" - is
contradicted by the judgement itself.
I wish to reiterate that I believe that the Supreme Court of India is
an extremely important institution and has made some enlightened
judgements. For an individual to argue with the Court, does not in
any way imply that he or she is undermining the whole institution. On
the contrary, it means that he or she has a stake in this society and
cares about the role and efficacy of that institution. Today, the
Supreme Court makes decisions that affect - for better or for worse
- the lives of millions of common citizens. To deny comment and
criticism of this institution, on pain of criminal contempt, from all but
an exclusive club of 'experts', would, I think, be destructive of the
democratic principles on which our constitution is based.
The judiciary in India is possibly the most powerful institution in the
country, and as the Chief Justice recently implied, the least
accountable. In fact, the only accountability of this institution is that it
can be subjected to comment and criticism by citizens in general. If
even this right is denied, it would expose the country to the dangers
of judicial tyranny.
I was also puzzled by the statement in the judgement that says:
"...showing the magnanimity of Law, by keeping in mind that the
respondent is a woman, and hoping that better sense and wisdom
shall dawn upon the respondent..." Surely, women can do without
this kind of inverse discrimination.
Lastly, I wish to point out that the Judgement says that I have
drifted away "from the path on which she was traversing by
contributing to the Art and Literature". I hope this does not mean
that on top of everything else, from now on writers will have to look
to the Supreme Court of India to define
the correct path of Art and Literature.
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