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Of speech and authority

8 Mar 2002


By Pratap Bhanu Mehta

In these tumultuous times, where two fundamental values of a constitutional liberal Democracy, the rule of law and tolerance, are at risk the Court's conviction of Arundhati Roy is sending exactly the wrong message.

THE SUPREME Court's finding that Arundhati Roy was guilty of contempt of court should be regarded as a grave error of judgment on part of the Court. I have no doubt that able lawyers and justices, with extraordinary capacities for creating distinctions without difference, will urge citizens not to see the issue in black and white. They will argue that this is not a straightforward case of a conflict between the court's contempt power and Ms. Roy's freedom of speech and expression. The Court on this view is not suppressing her freedom of expression, not even her Right to protest even though it had passed unjustifiable strictures on the tone of her writing and the manner of her protests. They will argue that the contempt proceeding pertains not to Ms. Roy's freedom of speech and expression, but her questioning of the court's judicial discretion to issue notices to her. Surely they will say that Ms. Roy's response to the mere issuance of a notice ought to invite censure. After all, she called a judicial dictatorship as fearsome a prospect as a military dictatorship; it is her rather than the Court's motives that are suspect and she was rightly called to task. Challenging the Court's authority is legitimate ground for contempt.

But for citizens, the most disquieting aspect of this judgment is the way in which it will, contrary to the Court's intentions, undermine its authority rather than enhance it. For one thing, there is a widespread and entirely justified view that the Judiciary is the one branch of Government exempt from public accountability. In the name of judicial independence it has been insulated from legislative, executive and popular scrutiny to the point that it has, no pun intended, become a law unto itself. Even strongly-worded criticisms of the courts invite the threat of contempt proceedings, and there is no Judiciary in the world that has used contempt proceedings as casually as Indian courts have. There is supreme irony in the way in which Indian courts have used contempt proceedings when their authority has been questioned (try applying that to the VHP by the way) but not so much when hundreds of their judgments remain unenforced. Indian courts are not above the charge that contempt proceedings are more about the sensitivities of judges than they are about shoring up the authority of the courts in the only way in which it can be shored up: enforcing the rule of law.

In these tumultuous times, where two fundamental values of a constitutional liberal Democracy, the rule of law and tolerance, are at risk the Court's conviction of Arundhati Roy is sending exactly the wrong message. First, there is a curious kind of paternalism in the Court's view of the "ordinary people". One of the ways in which Ms. Roy is said to undermine the authority of the Court is by misleading the public. There is an extraordinarily presumptuous attitude towards the ability of ordinary citizens to discriminate truth from falsehood, as if writers like Ms. Roy could easily dupe them. Of course, people are and can be duped about all kinds of things, but since when are the courts the custodians of what people ought and ought not to believe? This is, incidentally, the same kind of paternalism that has allowed the court to set itself up as the custodian of people's beliefs in cases such as the Stainslaus case which upheld the validity of legislation aimed at curbing conversion from one religion to another. Second, and most importantly, the Court rather than exercising its own authority is revealing its fragility, as if a few intemperate remarks can cause its authority to crumble. The majesty of law is already compromised if the Court does not have the confidence that it can survive critical scrutiny.

The Court is also sending a dangerous signal about toleration. More than anything, at this juncture this society needs the self-discipline to recognise Justice Holmes' claim in the famous U.S. Supreme Court case, U.S. v. Schwimmer, that "freedom is freedom for the thought we hate". I may find, like many others, much of Ms. Roy's writings on politics and policy, ill-judged, unbalanced and intemperate. And I may even disagree with her critique of the court. But unless freedom of speech, even if it be an ill-tempered and unbalanced critique of public institutions, is respected, the mentality of dependence in the face of authority can easily permeate even societies that think themselves to be free. A democratic society ought to value independence more than it fears insolence. Some will retort that surely there must be some limits to the freedom of expression. But I think it is safe to say that freedom of expression is genuinely respected only when speech at the margins of acceptability is protected; the centre will be safe only if the margins are safe. The capacity to honour pluralism, to live with difference, requires the kind of self-discipline where we have the ability to tolerate much of what we do not like. The impulse to proscribe speech, to punish every infraction that is seen to undermine one's authority reveals more about the punisher than it furthers the cause of either freedom or authority. It says: our authority is so fragile that it will not withstand serious questioning, and it says we do not have the strength to cope with deep differences. For citizens the issue this case raises is not whether the Court is right or wrong in the narrowest of the technical legal sense. The issue it raises is: has the court fallen prey to the same disposition that is rendering our liberties so precarious? Can a court, so sensitive about its own authority, exemplify the steely self-discipline in the face of the difference our society requires?

I am tempted to say a lot more about the Courts. While the Supreme Court has performed many a salutary function in keeping the cause of Democracy alive, in giving access to many citizens to justice, the overall performance of Indian courts will not be judged by history more kindly than the performance of our other public institutions. At least I can vote politicians out, I can impute motives to them, I can call them corrupt. They have to, once in a while, fold their hands for my vote, but the Judiciary cannot be made accountable if its own house is not in order. And it would be a mistake for the Court to think that by asserting its authority in the manner it has, it can obliterate the genuine disquiet many citizens feel. I would like to express more of my frustrations at the Court, but am now uncertain of the consequences of doing so.

The Alliance for a Secular and Democratic South Asia was formed in 1993 to combat rising religious intolerance in South Asia and to campaign for peace and justice in the region. We are committed to working towards a just, non-violent resolution of the crisis we are currently living through. If you are interested in joining us in this work, please call 617-983-3934 or e-mail

20 May 2006

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