Ranjit Devraj on the verdict against Arundhati Roy
March 2002: In sending the Booker Prize-winning author and anti-dam activist Arundhati Roy to jail for contempt this week, India's Supreme Court may have inadvertantly succeeded in resurrecting proposals to curtail the higher judiciary's feudal powers. Emerging defiant from her celebrated day in jail, Roy and a battery of prominent writers, journalists and activists addressed a press conference, accusing the courts of backing government policy and stifling criticism. Roy stuck to her guns in charging the courts with arbitrariness in applying criminal contempt laws. " It is not what you say, nor its correctness and justification, but who says it which determines whether or not it constitutes criminal contempt," she argued. What was at stake was not her personal freedom but the fundamental right to freedom of speech and expression guaranteed by the Constitution, said Roy, who was convicted on Mar. 6 because "she imputed motives to specific courts for entertaining litigation or passing orders against her," in filing an affidavit before it. Roy originally attracted judicial wrath by criticizing a judgement delivered by the Supreme Court on Oct. 18, 2000, which allowed the resumption of construction of the giant Sardar Sarovar dam across the Narmada river. Putting the charges against Roy into perspective, Prabhat Joshi, editor of the widely circulated Jansatta (the Hindi version of the English-language Indian Express newspaper), said he did not understand how Roy could be convicted for contempt when the Vishwa Hindu Parishad (VHP) openly defied the courts. "How is Roy different from the VHP?" he asked. [Eds. note: Some religious and other leaders associated with the VHP have repeatedly declined to accept the courts' authority to decide the outcome of a religious dispute with Muslim leaders over the disputed mosque at Ayodhya. Violence related to this dispute claimed hundreds of lives in Gujarat this month]. Said Roy: "The perpetrators of violence roam free while writers and activists are being sent to jail." In support of Roy, the editor of Frontline magazine, N. Ram, demanded that Parliament legislate "to clip the wings of the judiciary as far as the criminal powers of contempt of court are concerned." Ram said criminal contempt had become a "serious constraint in the way of the freedom of the press because the courts had become intolerant towards objective criticism." Ram noted that even truth was no protection in contempt cases and called Roy's conviction "shocking and bad in law." Among those who have argued for new laws in which defence of truth would be admissible in contempt cases is India's Attorney General Soli Sorabjee, who has suggested to the government legislation that followed the principles of libel cases, where "defence of truth" is valid. The Supreme Court itself had earlier recommended an "in-house" procedure to deal with allegations of misconduct or corruption against the judiciary, to which it is immune in spite of serious and mounting complaints. Chief Justice S P Barucha recently admitted that at least 20 percent of judicial officials in the country were known to be corrupt and lamented the fact that nothing could be done to remove them because of cumbersome procedures and political interference. To ensure their independence, judges can only be removed only by impeachment in Parliament -- but the sole instance of proceedings brought against a judge for corruption failed for lack of support. Commented Vinod Mehta, editor of Outlook, a leading weekly: "The sort of tyranny that the courts exercise is extraordinary. What is more extraordinary is that it is unchallenged." In a note to the present government, which has set itself the task of "reviewing the constitution," legal expert Anil Chawla has pointed out that the Indian judiciary continues to be both colonial and feudal in character because it was established by the colonial British in the last century. "Contact between judges and the common people was discouraged and the concept of jury was anathema since it would have involved the local people in the decision-making process," Chawla noted. Procedures in Indian courts, which do not allow for juries, have changed little after independence. For instance, an accused may still be asked by police to remove footwear before entering a courtroom and to stand with folded hands before a judge in supplication. "The concept that an accused is innocent till proved guilty and must be treated with due respect and dignity finds no place in Indian courts, where only the judge has honor and only the advocates are learned," commented Chawla in his note. In fact, the only exception to the fundamental right to freedom of expression and speech guaranteed by the Indian Constitution is the law of contempt. Roy's lawyer, Prashant Bhushan, himself a prominent human rights activist, said that instead of reforming themselves, the courts have gone on to add to their powers so much so that Indian courts are now regarded as among the most powerful in the world -- and also among the most unaccountable. According to Medha Patkar, leader of the Narmada Bachao Andolan, (Save the Narmada Movement) of which Roy is a member, what was really at issue was support given by the courts to the government's structural adjustment program to the detriment of ordinary people. "The courts' decisions are now being used by the executive to legitimize and promote policies and programs already under attack by various public campaigns and mass movements," Patkar said. Ranjit Devraj
March 2002 Ranjit Devraj is a correspondent with Inter Press Service, a global news resource faciliating south-south and south-north dialogue on important economic, social, environmental, and other issues. IPS is distributed in the U.S. by Global Information Network.