In defence of dissent: Arundhati Roy

Roy challenges the Bombay High Court (Nagpur bench) order to launch criminal proceedings against her, in the Supreme Court. SC issues notice but directs her to appear before the High Court on January 25 

Image Courtesy: K. Pichumani, The Hindu

The order of the Bombay High Court directing criminal contempt proceedings against me is untenable legally besides raising crucial questions of the right to freedom of expression in a democracy, says Arundhati Roy in her appeal; SC issues notice to Bombay High Court and the Maharashtra government on Friday (January 22) but directs Roy to appear before the Court on January 25, 2016

Noted writer Arundhati Roy has challenged the order of the Napur bench of the Bombay High Court dated December 23, 2015 directing criminal defamation proceedings to be filed against her[1]. The special leave petition was filed on January 7, 2016 in the Supreme Court of India.
Roy has challenged the High Court’s Order on grounds that it is not tenable in the eyes of the law and in fact militates against the law laid down by Constitutional Courts from time to time. Besides, it raises crucial questions of freedom of expression and the right to criticise governments and state institutions in a democracy.
The judgement directing Roy to be proceeded against through criminal contempt proceedings was based on an article that she wrote for Outlook magazine on May 9, 2015. In response, her special leave petition states that “ a reading of the contents of the article authored by the petitioner (Roy) on the basis of which criminal contempt proceedings have been initiated, would reveal that she was only bringing forth the plight of a person who is ninety per cent disabled, wheelchair bound and suffers from a degenerative medical condition that requires constant medical care.”
The special leave petition of Arundhati Roy argues that there are three crucial aspects which show that the Bombay High Court has erred in law. These  are:

  1. That no application for bail was pending when the petitioner (Roy) had written her article. The court itself had noted that the previous proceeding that resulted in the dismissal of the bail application moved by Dr. Saibaba, had come to an end on August 25, 2014. The article authored by the petitioner was published by Outlook magazine on May 9, 2015, a full seven months later. Therefore, there is no basis to hold that the petitioner had a “malafide motive” or a “game plan” to “interfere in the administration of justice.”
  2. That Roy’s article was a bonafide exercise of her Freedom of Expression. Arundhati Roy has stated in her petition, that “For the sake of argument let’s leave the decision about whether Dr Saibaba is guilty or innocent of the charges levelled against him to the courts. And for the moment let’s turn our attention solely to the question of bail—because for him that is quite literally a matter of life and death.”  Roy believed that the question of Dr. Saibaba’s liberty in the given circumstances, was quite literally a question of life and death due to his worsening medical condition, and therefore it was of urgent and utmost importance that he be granted bail.

The same Court that is the Bombay High Court (that had cancelled Professor Saibaba’s interim bail on December 23, 2015), had, on June 26, 2015 (in Criminal PIL No 4/2015) stated quite the contrary to what was held in the December 2015 order. The Court had earlier said, “We are satisfied that if Professor Saibaba is not released on temporary bail for medical treatment and supportive care as indicated above, there could be a risk to his life and health.” At that stage, the High court at Bombay had held that the medical condition of Dr. Saibaba required immediate medical attention, and hence he was entitled to be released on temporary bail.

Further, Arundhati Roy’s petition states, “The Division Bench (of the High Court at Bombay) comprised of the Hon’ble the Chief Justice of the Bombay High Court and Hon’ble Justice S.B. Shukre, who had previously dismissed the bail application of the prisoner in question. Therefore the Judge was clearly aware of the case concerning the prisoner in question and his medical condition, and the Court found such condition to be fit for grant of relief ". 

If at all, this is a vindication of what the Booker prize winning author, Arundhati Roy, wrote in Outlook. To quote, “This further vindicates the stand taken by the petitioner (Roy) in her article regarding the question of bail being one of life and death for Dr. Saibaba.In these circumstances, the petitioner’s expression of her views, was a bonafide exercise of her rights under Article 19(1)(a) of the Constitution of India. In the same order the division bench (that granted temporary bail to Saibaba), had held that “In the circumstances, if this Court does not exercise extraordinary jurisdiction under Article 226 of the Constitution this Court would be failing in its duty of protection the fundamental rights of Professor Saibaba.”  The petition adds, "It is submitted that in the same spirit of the Learned Division Bench, the Petitioner, far from committing a criminal act, was only doing her duty as a writer.”
“The article by the petitioner is an expression of her belief that the treatment being meted to Dr. Saibaba was incorrect and inhumane. The petitioner did not intend, and could not have intended to cause any obstruction of justice, as assumed in the impugned order, by expressing her views in her article. Her views did not cause any obstruction in any judicial process since no judicial proceeding for bail was pending at that juncture.

Criminal Contempt proceedings are bound to create an intense, chilling effect on the fundamental right to the Freedom of Expression as enshrined in the Indian Constitution, as well as on other fundamental rights.
The petition makes a strong case against the initiation of criminal contempt proceedings as directed by the High Court. "If contempt proceedings are indeed initiated the fundamental rights, including the right to freedom of speech, would be indelibly affected."  Roy states that she has approached the Supreme Court of India to seek “protection of my fundamental right to the Freedom of Expression." The petition also argues that there would be a far reaching, adverse impact if contempt proceedings are initiated against her. "In the absence of a well founded basis in law, " the petition lays out, "the very trial of the petitioner (Roy) would be her torment, and the process will be the punishment. It is bound to create an intense chilling effect on the fundamental right to the Freedom of Expression as enshrined in the Indian Constitution, as well as on other fundamental rights of the petitioner. It is also likely to have a serious, adverse and rippling effect, much greater in magnitude on anybody who expresses any genuine “opposition”, to any of the actions or policies of the Government.”
The Timeline of these proceedings from the special leave petition of Arundhati Roy, is given below.

A critical aspect of the debate are the proceedings on the law relating to criminal contempt during the Constituent Assembly Debates. These too can be accessed here.

  1. Judicial overreaction;
  2. The contempt notice against Arundhati Roy is yet another reminder of why this law must go

The petition of Arundhati Roy seeks to point out that a reading of her entire article would reveal that the article does not contain anything which may even remotely be construed as an offence under the law of contempt of court, nor does it even remotely tend to denigrate the majesty of courts or lower their image. The timeline of events is as follows:

09.05.2014 to 30.06.2014 and from 25.12.2014Dr G.N Saibaba, a lecturer at the University of Delhi, who is wheelchair bound and is what is known in medical terms, as 90% disabled, was arrested and remanded to custody in solitary confinement (‘Anda Cell’) at Nagpur Jail. Crime No. 3017/2013 was registered against him for offences punishable under Sections 13, 18, 20, 38 and 39 of the Unlawful Activities Prevention Act (Amendment 2008) (hereinafter referred to as “UAPA”), at Police Station Aheri, Distt. Gadricholi.
25.08.2014Dr.G.N. Saibaba’s Bail Application No. 485/2014 was heard and dismissed by the Learned Single Judge of the Hon’ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur.
09.05.2015Exactly one year after the day of Dr.Saibaba’s arrest, Outlook magazine published an article by the petitioner (Roy) detailing the factual backdrop of the arrest, the adverse impact that the year-long incarceration had had on the health of  Dr.Saibaba. A bare reading of the article will demonstrate that the petitioner’s narrative of the entire episode was informed by Professor GN Saibaba’s severe medical condition of post-polio paralysis and 90% disability, which was aggravated and worsened by an acute lack of proper medical treatment available during his incarceration. This narration was in line with observations made by the division bench of the High Court of Bombay, at Mumbai, in Criminal PIL No. 04/2015.
Throughout the article, Roy’s arguments centre around the arrest and continued detention of Dr.Saibaba, despite his severe disability and worsening health. She writes that, as a signatory to international treaties and protocols, India had specific obligations and duties concerning the treatment of people with disabilities. The article (states her petition) accurately and journalistically recounts the facts and circumstances of Dr.Saibaba’s detention and the dismissal of his bail applications by the Sessions Court, as well as the subsequent deterioration in his health.
Roy has based her narrative on facts available publicly and/or gathered through journalistic enterprise, and not on a single conjecture or surmise. All submissions are backed by sources clearly mentioned in the body of the article, and at no point has she sought to scandalize or cast aspersions on the functioning of the Court, to which she has barely alluded.
Roy states that her opinion, which is based on a journalistic distillation of facts, cannot be construed to have a “malafide motive to interfere in the administration of justice” or to be “reflecting a surly, rude or boorish attitude” or have wild motives, such as the petitioner, Roy, ‘having a game plan’, imputed to it.
Petitioner Roy’s perspective is based wholly on facts relating to Dr.Saibaba’s medical condition, and is completely in line with the observations of the Bombay High Court in Criminal PIL No. 04/2015 in June 2015.
10.06.2015On the basis of an email by Purnima Upadhyay, a social activist, who relied upon a report about the physical condition of Dr Saibaba written by Pavan Dahat in an article in The Hindu dated May 8, 2015, the  High Court at Bombay, took suomotu cognizance of the incarceration of professor, Saibaba and registered Criminal PIL No. 04/2015.
17.06.2015In Criminal PIL No. 04/2015, the High Court examined the medical report of the Chief Medical Officer, Prison Hospital, Central Prison, Nagpur, which detailed the worsening medical condition of professor Saibaba and the onset of further medical complications which required surgery, including angioplasty. On the basis of the said medical report, the High Court observed that “there cannot be any objection to the prisoner being taken to the above private hospital initially for diagnosis and for considering the treatment required to be undergone by the prisoner.” Accordingly it was directed that professor Saibaba be taken to the “Neuron” Hospital, Nagpur, within 24 hours where he was to be examined and the relevant report be submitted to the Court within one week, pending which he was allowed to remain admitted in the concerned hospital for treatment, in the presence of his family members.
23.06.2015In Criminal PIL No. 04/2015, the High Court took note of the fact that further tests were required to ascertain Dr. GN Saibaba’s treatment prognosis, and accordingly, it ordered that he be admitted to a private hospital of his choice in Nagpur, where such testing facilities were available. Non-compliance of the order dated June 16, 2015 by the State, as brought out by petitioner, Roy insofar as disallowing Dr. Saibaba’s family to stay by his side during the course of treatment, was also taken note of by the High Court.
26.06.2015In Criminal PIL No. 04/2015, (Purnima Upadhay) prayed that Dr.Saibaba be granted bail so that he could get medical treatment in Delhi since his family members were based there and were not in a position to continuously be at his side in Nagpur. The High Court observed that the deteriorating health condition of Dr. Saibaba during the period of his incarceration, constituted ‘material change’ in circumstance since he last applied for, and was denied bail, and on that basis, a fresh plea for grant of bail needed to be re-examined.
30.06.2015In Criminal PIL No. 04/2015, the High Court granted temporary bail for a period of 3 months to Dr. GN Saibaba, inter alia observing:
“16. In the facts and circumstances of the case, therefore, it is clear that Prof. Saibaba badly requires pain management, supportive care and medical treatment at New Delhi where his family members being aged mother, wife and daughter are residing. We are satisfied that if Prof. Saibaba is not released in temporary bail for medical treatment and supportive care, as indicated above, there could be a risk to his life and health. On the other hand, releasing Prof. Saibaba on bail for a period of 3 months for medical treatment would not cause any threat or risk to the security of the Nation.
21. In the circumstances, if this Court does not exercise extraordinary jurisdiction under Article 226 of the Constitution this Court would be failing in its duty of protection the fundamental rights of professor Saibaba under Articles 14 and 21 of the Constitution, was confined to a secluded cell and was not in a position to move this Court on his own. Hence we are inclined to direct the respondents to release the under trial prisoner, professor GN Saibaba on temporary bail for a period of 3 months for his medical treatment and supportive care by his family and medical personnel at New Delhi.”
November 2015In the light of the liberty granted in Criminal PIL No. 04/2015, Dr. Saibaba filed an application for the grant of regular bail before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur for consideration on merits. It was registered as Criminal Application (BA) 785/2015.
23.12.2015In Criminal Application (BA) 785/2015, the High Court of Judicature at Bombay, Nagpur Bench, Nagpur, dismissed Dr.Saibaba’s bail application. Also, without any prior warning or impleadment, it issued notice of criminal contempt (returnable on 25.01.2016) to the petitioner, Arundhati Roy, who was not even party to the bail proceedings. The notice of criminal contempt was based on a highly selective reading of the petitioner Roy’s aforementioned article published in Outlook magazine. Words and phrases in the article have been reproduced in the impugned order sans context, or in an entirely different and unintended context, and without taking into account the fact that there is not a single allusion to mala fide motives of any judicial body or court. The High Court has neglected to see that the petitioner’s perspective which is based solely on facts and circumstances relating to manner of the arrest and the nature of incarceration of a prisoner who suffers from 90% disability and whose medical condition was aggravated during the period of his custody, as noted by a two member bench of that Court, at Mumbai



[1] Special Leave Petitin filed in the Supreme Court of India Against the order dated 23.12.2015 passed by the Hon’ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Application (BA) No. 785 of 2015



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