In re Arundhati Roy (2002)

It is the modern Indian authority on scandalising the court, and on where fair criticism stops. Two propositions come from it and both are examinable.

Free speech and contempt are not in conflict, because Art. 19(2) names contempt of court as a ground of reasonable restriction. And the offence is one of tendency: the Court's own image — "it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target" — is the sentence to quote.

Narmada Bachao Andolan had filed a petition under Art. 32 concerning the environmental and displacement consequences of the Sardar Sarovar dam. During its pendency the Court permitted the height of the dam to be raised to RL 85 metres, which the petitioners and others resented.

The respondent, Arundhati Roy, was not a party to those proceedings. She published an article, "The Greater Common Good", in Outlook magazine and in part of a book of the same title. Two of the three judges hearing the matter thought her comments were prima facie a misrepresentation of the Court's proceedings and recorded: "We are unhappy at the way the leaders of NBA and Ms. Arundhati Roy have attempted to undermine the dignity of the Court." They nevertheless declined to initiate contempt proceedings. The third judge recorded his disapproval and said the Court's shoulders were broad enough to shrug off the comments.

On 30 December 2000 a dharna was held outside the Supreme Court, organised by the Andolan. A contempt petition alleged that abusive slogans had been shouted ascribing lack of integrity and dishonesty to the institution. The alleged contemnors denied it, and rather than hold an inquiry the Court dropped those proceedings too.

What it did not drop was the affidavit. In her show-cause affidavit the respondent imputed motives to the Court for entertaining the litigation, accused it of harassing her "as if the judiciary were carrying out a personal vendetta against her", and stated in court that she stood by her comments even if contumacious. Notice was issued on three offending paragraphs, and in her reply affidavit she reiterated everything.

The passages the Court identified in paragraph 40: that it had displayed "a disturbing willingness to issue notice" on "an absurd, despicable, entirely unsubstantiated petition"; that in doing so it was "silencing criticism and muzzling dissent" and "harassing and intimidating those who disagree with it"; and "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."

1. Do those statements amount to criminal contempt by scandalising the court under s. 2(c)(i)?
2. Is a citizen protected by the freedom of speech and expression in Art. 19(1)(a)?
3. Are the statements saved as fair criticism?
4. What punishment is appropriate where no remorse is shown?

Guilty of criminal contempt by scandalising the authority of the Court "with malafide intentions", punishable under s. 12 of the Contempt of Courts Act 1971. Sentenced to simple imprisonment for one day and a fine of ₹2,000, with three months' simple imprisonment in default.

On free speech. "If a citizen... in the garb of exercising right of free expression under Article 19(1), tries to scandalise the court or undermines the dignity of the court, then the court would be entitled to exercise power under Article 129 or Article 215, as the case may be." Freedom of speech is guaranteed, "but it is also intended that in the exercise of the right, contempt of court shall not be committed".

On fair criticism. "Fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field... and the intended purpose sought to be achieved." But: "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." Approving P.N. Duda v P. Shiv Shankar: "Judgments can be criticised. Motives to the judges need not be attributed."

On tendency. "This is no defence to say that as no actual damage has been done to the judiciary, the proceedings be dropped. The well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target."

On Lord Atkin. The Court "seriously considered" the passage from Andre Paul v Attorney General [(1936) AC 322]: "The path of criticism is public way: the wrongheaded are permitted to err therein... Justice is not a cloistered virtue." It declined to apply it: "in view of the utterances made by the contemnor in her show causes filed and not a word of remorse... it is difficult for us either to shrug off or to hold the accusations made as comments of outspoken ordinary man".

On the defences. "The law of contempt itself envisages various exceptions as incorporated in Section 3, 4, 5, 6 and 7. Besides the aforesaid defences envisaged under the Act, the court can, in appropriate cases, consider any other defence... which is not incompatible with the dignity of the court and the law of contempt."

Imputing improper motives to the Supreme Court in relation to a pending proceeding is criminal contempt by scandalising the court under s. 2(c)(i) of the Contempt of Courts Act 1971, and is not protected by Art. 19(1)(a), which is expressly subject to the restriction for contempt of court in Art. 19(2).

Obiter, and there is a good deal of it. The extended review of earlier authority — Brahma Prakash Sharma, Baradakanta Mishra, In re S. Mulgaokar, D.C. Saxena, Sheela Barse — is background. So is the account of the earlier Narmada proceedings and of the dharna contempt petition, both dropped and neither of which she was convicted for; students routinely and wrongly say she was punished for the article or the dharna. She was convicted for the affidavit. The observation that she is "on her own right an acclaimed writer in English", and so cannot claim the indulgence given to an "outspoken ordinary man", is a factor in the assessment rather than a rule. The reasons given for a symbolic sentence are mitigation, not law.

Start with the structure of s. 2(c). Criminal contempt is the publication of any matter, or the doing of any other act whatsoever, which (i) scandalises or tends to scandalise, or lowers or tends to lower, the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes with or obstructs the administration of justice in any other manner. This is a case on head (i). Note the word "tends", which recurs in all three heads and is the whole point of the archer image.

What "scandalising" means. The Court adopted the definition in D.C. Saxena: "scandalizing the court... would mean hostile criticism of judges as judges or judiciary... imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court and would be contempt of the court. Even imputation of lack of impartiality or fairness to a judge in the discharge of his official duties amounts to contempt." The line runs between the decision and the motive. Criticise the judgment as harshly as you like; do not say the judge had a reason for it other than the law.

Why the case was not saved by s. 5. Section 5 provides that a person is not guilty of contempt "for publishing any fair comment on the merits of any case which has been heard and finally decided." Three conditions: the comment must be fair, on the merits, and the case finally decided. Her statements failed all three — they went to the Court's motives, they were not fair on the Court's assessment, and they related to a pending proceeding, the show-cause notice she was answering. The Court quoted Sheela Barse: the broad right to criticise systemic inadequacies is real, "but we find no justification to the resort to this freedom and privilege to criticise the proceedings during their pendency by persons who are parties and participants therein."

And why remorse decided the sentence, not the conviction. Read the two halves separately. The conviction turned on the words. The sentence turned on her conduct after them: "As the respondent has not shown any repentance or regret or remorse, no lenient view should be taken in the matter." The Court then imposed a symbolic sentence anyway. That pairing — firm conviction, nominal punishment — is characteristic of the scandalising jurisdiction.

The 2006 amendment to s. 13 is the currency point on this topic, and it postdates the case.

Where the law stands. The Contempt of Courts Act 1971 is in force and has not been repealed. Section 13 provides that no court shall impose a sentence for contempt unless satisfied that the contempt substantially interferes, or tends substantially to interfere, with the due course of justice; and by an amendment made in 2006 a court may permit justification by truth as a valid defence where the truth is in the public interest and the request to invoke it is bona fide. That amendment came four years after In re Arundhati Roy, so the judgment does not discuss it. The bare Act is not among the source files for this pack; check the section text before quoting its clauses. Note also that s. 13 filters punishment, not liability.

Bhuramal Swami v Raghuveer Singh (Supreme Court, judgment delivered 21 October 2016) applies the same line to advocates. Political speakers, two of them advocates, told a public meeting that "there are two types of justice in the courts" and that money lay behind an anticipatory bail order. Held contempt: "Accusing judges of corruption results in denigration of the institution... They are not entitled to seek shelter under Section 5 of the Act." Quoting Indirect Tax Practitioners Association v R.K. Jain: "Only when the criticism of judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power."

Your syllabus also lists as further reading the Law Commission of India, Report No. 274: Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act), April 2018. Name it if reform comes up; do not state its recommendations unless you have read it.