The conviction of Arundhati Roy for criminal contempt of court has brought into sharp public focus the twin issues of the freedom of speech of citizens regarding the judiciary and the accountability of the judiciary itself.

The issues raised by the case transcend what she had said and whether her sentence was justified.

The questions that the judgment raises are: Are the press and a common citizen untrained in law not free to comment upon or criticise the judiciary? Does the dignity of and respect for the courts depend upon what citizens say or do not say about the courts, or must it rest, as Lord Denning once said, on surer foundations? Is there need for judicial accountability? Is there any justification for the judiciary to have the power to punish for “scandalising or lowering the authority of the court”?

Recently, in a speech made in Kerala, the Chief Justice of India lamented the fact that up to 20 per cent of the judges in the country are corrupt and that they bring the entire judiciary into disrepute. He further said that unfortunately there is little that can be done to bring them to book because of the unworkability of the machinery of impeachment.

Justices Pattanaik and Sethi in their judgment in Roy’s case say, “After more than half a century of independence, the judiciary in the country is under a constant threat of being endangered from within and without.” Obviously, they cannot be referring to the statements made by the chief justice as those which endanger the judiciary from within. He was merely stating the reality which is daily perceived by the citizens of the country.

It is the corrupt judges and their corrupt deeds which are posing a threat to the judiciary from within. It is their acts, as the chief justice correctly remarked, which are eroding the dignity and authority of the judiciary and eroding public confidence in it.

Justices Pattanaik and Sethi go on to say, “The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it might be.”

The question is do you go for the neck of those who are highlighting the problem or those who are responsible for creating it in the first place. Roy rightly said in reply to the contempt notice: “I do not believe that the criticism of the court or its processes by an individual, whoever that individual might be, can possibly lower the dignity of an institution as powerful and venerable as the Supreme Court of India.

“If the criticism is random and unfounded, it will automatically rebound on the reputation and credibility of the individual who levelled it. If, on the other hand, it is substantial and valid, the court cannot hope to restore its dignity by punishing or silencing its critic. Indeed, doing so would have the opposite effect. The dignity, authority and the reputation of the court depend entirely on the conduct of its judges and the quality of their judgments.”

If, as the chief justice rightly says, corruption in the ranks of the judiciary is bringing the entire judiciary into disrepute, why is the “long hand of contempt of Court”, not being able to reach the necks of the corrupt judges? After all, they are, by their acts of corruption, destroying the credibility of the courts. This perhaps can provide an answer to the chief justice’s lament that there is virtually nothing that can be done to bring errant judges of the higher judiciary to book.

The court in Arundhati’s judgment notes the speech by former Law Minister Shiv Shankar where he said, “The Supreme Court composed of elements of the elite class, had their unconcealed sympathy for the haves — anti-social elements, i.e. FERA violators, bride- burners and a whole horde of reactionaries have found their haven in the Supreme Court.”

The court found this permissible because the criticism had been made “by a person who himself had been the judge of the high court and was a minister at the relevant time”. It goes on to say, “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.”

This is a most pernicious doctrine evolved for the first time by this judgment. It violates not only the constitutional guarantee of freedom of speech and expression on which only reasonable restrictions may be imposed for contempt of court, it violates the democratic philosophy on which our Constitution is founded.

The Constitution-makers gave us a democratic republic in which every institution derives its authority from the people. The view that citizens cannot comment upon or criticise the conduct of the judiciary is repugnant to the basic principles of the Constitution, and reflects a colonial mindset.

The accountability of the courts can stand if their conduct is scrutinised and criticised by the citizens and the press. This does act as a check even though the judges of the high courts and the Supreme Court enjoy a virtual immunity from removal. It would be dangerous for our society if even this check is removed by preventing common citizens to comment upon the conduct of the courts.

Though the judgment says in other places that only mala fide criticism is sought to be stifled by exercise of the contempt power, the problem is that it is the judges themselves who decide whether the criticism is mala fide or not. And sitting virtually as judges in their own cause, there is every possibility of bias.

Medha Patkar had cautioned against the use of the contempt power against persons who have criticised the courts. The court, while dismissing the contempt petition filed by the lawyers against Patkar, agreed that the petition ought not to have been entertained, since it lacked credibility and “violated virtually every rule framed by the court”. They held that Patkar’s reply did not constitute contempt because she “had spoken generally of the superior courts using the power of contempt against persons who have been criticising the courts and their judgments”.

Regarding Roy, they said, “She has imputed motives to specific courts for entertaining litigation or passing orders against her. She has accused courts of ‘harassing her’ (of which the present proceeding is cited as an instance) as if the judiciary were carrying out a personal vendetta against her.”

Roy made a formal application asking Justice Pattanaik to recuse himself from the proceedings, on the ground that since he had issued notice in the contempt petition filed by the lawyers, therefore the allegation against her was that she had imputed motives to Justice Pattanaik for entertaining that petition against her. In such circumstances, he would be deciding whether the alleged imputation of motives to him amounted to contempt or not. She had a reasonable apprehension of bias on his part, and therefore his deciding the case would violate the principles of natural justice.

This application was rejected in the judgment by saying, “The contemptuous part of her affidavit, noticed herein before, does not attribute any motive or make any allegation against any judge.” This is contrary to their own earlier judgment and contempt notice. They go on to decide and hold that the affidavit was mala fide. All this just underlines the completely arbitrary nature of this power.

This judgment has initiated a public debate on whether there is any justification for vesting this power relating to scandalising or lowering the authority of the court on the courts at all. If this power is at all needed, it is imperative that it must be vested in some institution other than the judiciary.

(The writer is a former Union Law Minister and senior advocate in the Supreme Court of India)