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ONE of the early victims of the criminal law of contempt was EMS Namboodripad. The late Communist leader had accused judges of the Kerala High Court of class bias. What is however less remembered is that Justice Hidayatullah, in response, wrote an erudite article on Marx and Marxism. Clearly those were civilized days. Equally that our judges were more learned and less prickly about the ostensible attack on their dignity or the attributing of motives.

Opinions on the recent high profile case involving writer-activist Arundhati Roy vary. On 6 March, a bench of the Supreme Court convicted Roy, sentencing her to a one day stint in prison and a fine of Rs 2000. Wading through the reams of comments following Roy’s conviction, it is difficult to make out whether those commenting are talking about Arundhati, the person and her stances, or about the law and its practice.

A minority, expectedly classified as ‘politically incorrect’, argue that Roy ‘invited and deserved’ the ire of the apex court, that the affidavit she filed in response to the contempt summons not only challenged the court but imputed motives. Equally, though given a chance to express remorse, she remained defiant. Consequently, the court no longer had the option of ignoring her statements and displaying the broad shoulders it did in the earlier instance.

Others, including Arundhati’s supporters, disagree. Their ire is both related to the specific ruling as also to the very existence of this law on the statute books. After all, what is it that Arundhati had written, be it about the Sardar Sarovar case, the nature of the judicial process, the anti-people character of various judgements, or even about the capricious behaviour of the judges that has not been said before? If anything, the court’s gratuitous comments about Roy being a famous writer and a woman, both of which influenced the final sentence, only proves the point. It is also asserted that more than Roy’s writings, it is the judgement in her case which brings the court into greater ridicule and contempt. It is also pointed out, albeit with some sorrow, that while the courts have so far done nothing to restrain groups like the VHP who proclaim that they will not abide by their verdict, they become over-sensitive in cases like the one in question.

Be that as it may, there is extreme uneasiness across the spectrum both about the law of contempt as also the proclivity of the higher judiciary, particularly in recent years, to exercise their power to punish those whom they perceive as deliberately undermining the dignity of the judiciary and judicial process. So, is it not time that our lawmakers rewrite the law such that it becomes more amenable to ‘objective ascertaining’, if not get rid of it all together? After all, as long as the law exists, it will be episodically invoked. And does not its very presence constrain free speech as also serve to keep the judiciary beyond the ken of public scrutiny and accountability?

There is little doubt that as the judiciary, willingly or otherwise, has encroached upon domains of the executive and legislatures or has been asked to intervene in all manner of disputes – from the country’s development path to historical controversies like Ayodhya – it has been dragged squarely in the domain of public scrutiny and discourse. Given our tendency to judge the fairness of judicial processes almost solely by the end result, it is no surprise that those negatively affected by judgements attribute motives.

Nevertheless, it would be a grave error if we fail to recognise that, other failings apart, our higher courts constitute a major forum of appeal against the excesses of the executive and political class, that they have both protected and deepened the rights and freedoms of individuals and communities. It is this measure of credibility that has permitted them to pull up errant governments and provide relief to affected parties. Leaving them exposed or unprotected is unlikely to serve the interests of either democracy or accountability.

Equally, let us not forget that there are hundreds of articles, monographs and books that have analysed judgements, judicial processes and procedures, even the background of judges. Even when critical they have rarely invited censure. So to look upon the judgement in the Arundhati Roy case as undermining the right to free speech and expression will be a gross over reading.

Yes, reform is needed. Unless the law is modified such that the public (not just the judicial community) can decide about what constitutes contempt, the danger of judicial prickliness and arbitrariness will remain. Equally, there is need to explore mechanisms, other than impeachment, to ensure judicial rectitude and accountability. Can we hope that the current debate will nudge our lawmakers in the right direction?

Harsh Sethi