Image Courtesy: NDTV.com

The law student who accused BJP’s Chinmayanand of rape and sexual exploitation, in a curiously strange turn of events, is facing an investigation for alleged extortion. And today, news surfaced that the student has been arrested. However, in what may come as a breather for her, the court agreed to hear her request for protection from arrest. A court in Uttar Pradesh will hear her petition on September 26, Thursday.

The news came for the woman amid reports that she may have been taken by the police for questioning after she was charged with extortion. Her lawyer, Anoop Trivedi said, “The media was broadcasting wrong news that the girl was arrested. We have not been given any notice,” said the woman’s lawyer Anoop Trivedi.

The 23-year-old woman was on her way to the court in UP’s Shahjahanpur for protection from arrest when reportedly, the police intercepted her, took her outside and made her sit in a vehicle, sources said.

The law student is seen walking out of the court in some visuals, flanked by a large number of policemen and a woman officer of the Special Investigation Team (SIT) that had been constituted to investigate the allegations against Chinmayanand, a former union minister. She had accused that he blackmailed her, forced her to give him massages and raped her for a year.

The minister’s lawyer Om Singh, however, repeated his claims of a conspiracy and extortion, “I have been saying from day 1, that the video uploaded by the woman on Facebook, it has connections to extortion against Chinmayanand… I just cannot understand why she has not been arrested yet. She will go to jail, of that I am sure,” he said.

The BJP minister was arrested on last Friday, days after the law student testified in court and close to a month after the allegations first surfaced. The court has denied him bail and told him to approach the Sessions court.

Chinmayanand has been charged with “misusing authority for sexual intercourse” or “sexual intercourse not amounting to the offence of rape”, according to his lawyer.

The law student had been trying to file a rape complaint for almost a month but the UP police refused to do so. Once arrested, apparently, he has been not charged with rape still. The only charges the police did file was that of kidnapping and intimidation, which the woman’s family had alleged after she went missing.

He was finally arrested a day after UP Chief Minister Yogi Adityanath, at a press conference on his government’s half-way mark, claimed that women’s safety was a priority for him and crime had dropped since he came to power at the head of a BJP government.

The 23-year-old woman, a student at a law college that Chinmayanand runs, on Monday went to a court protected by over 50 police personnel and recorded her statement in the court of the chief judicial magistrate.

Related Articles:

https://sabrangindia.in/article/who-chinmayananda
https://sabrangindia.in/article/fb-video-missing-student-what-has-transpired-chinmayanand-case

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The Hindu Mahasabha plans to open 5 more such courts in other districts such as Aligarh, Mathura, Hathras, Firozabad and Shikohabad which will be inaugurated on November 15^th the day when Nathuram Godse, the man who shot Gandhi was hanged.

However the main purpose of setting up Hindu Courts is to counter the plan of the All India Muslim Personal Law Board to set up Shariah courts. The Hindu Mahasabha members argue that if there can be Darul qaza court for Muslims then why can’t there be a court for Hindus? And that there should be just one constitution for everyone.

They claim that they had objected to the Shariah Courts and demanded that these courts be closed but their demands have not been met which is why Hindu courts have been set up.
 

This court will also have systems of punishment with their own jails and the highest punishment will be death sentence.

TwoCircles.net spoke to some activists and laypersons on this new turn of events.

Khalid Hassan, General Secretary of Awami Insaaf Movement said, “I believe this is an attempt by the right wing to put pressure on the Government to end the Qazzat system, Dar Al Iftah, Deoband etc. Whenever there will be an objection or court case, they will give reference of these and petition that our court is no different from theirs, shut that and we will shut these.”

Pallavi Gupta pursuing her Phd, said, “This move by the Hindu Mahasabha raises several concerns; first whether informal systems for redress can enable access to justice. And in the process replace or address the pending cases in court?”

“Second, having an informal redress system is not really a solution for the problem of pending cases. Third, what is the locus standi of these Hindu courts? How have they been set up and under what law, rule and procedures will they operate? Finally, I think it’s important to reflect on the larger issue “Hindu courts on lines of Sharia system” is not only demonizing Sharia and uncodified Muslim personal laws but also laying the ground for demands for a Uniform Civil Code in India.” She concluded.

Indrani, a private employee who is affiliated with a political party said, “It is not a bad idea to have our own courts. It will save both money and time.”

The Hindu Mahasabha members also feel that through these courts they can bring all Hindus under one umbrella and unite them. They plan to set up at least 15 Hindu courts in India.

Courtesy: Two Circle

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The president uses his Twitter feed to make official announcements. AP Photo/J. David Ake

The appeals court’s ruling is not a surprise to me, as director of the Marion B. Brechner First Amendment Project at the University of Florida. That’s because it, like the lower court decision it upholds, is grounded in the well-established principles of protecting political speech and barring government discrimination against people engaged in public discourse based on their viewpoints.

The district court judge found that Trump blocked Twitter followers from his account “indisputably … [as] a result of viewpoint discrimination.” The appeals court agreed, finding that Trump “engaged in unconstitutional viewpoint discrimination by utilizing Twitter’s ‘blocking’ function.” In other words, Trump cannot block people simply because they criticize him or his policies.

That issue was never really in question in this case, though. The main debate was whether the president’s personal Twitter account was a public forum governed by the First Amendment. More traditional public forums are physical places owned by the government, such as sidewalks, parks and auditoriums. Peaceful public speech and demonstrations in those venues cannot be stopped based on what is being said without a compelling government interest. Twitter, however, is not a real-world space. And it’s run by a private company.

The district court’s ruling found, however, that the company has less control over the @realDonaldTrump account than Trump himself and White House social media director Dan Scavino – also a public official. Their power includes the ability to block people from seeing the account’s tweets, and “from participating in the interactive space associated with the tweets,” in the form of replies and comments on Twitter’s platform.

Also key was the fact that the @realDonaldTrump account is used for governmental purposes. Specifically, the district court judge found that “the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President” – such as announcing the appointments and terminations of government officials.

The appeals court agreed on both points, saying, “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

This decision brings the Supreme Court’s longstanding free speech doctrine into the social media era.

Editor’s note: This is an updated version of an article originally published May 24, 2018.

Courtesy: The Conversation

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However Judge Vinod Padalkar of special National Investigation Agency (NIA) court  rejected her plea and asked her to attend the hearings in the court scheduled for this week.

An appeal was filed by Nisar Ahmed, the father of one of the victims who died in the blast to bar her candidature in April but was over ruled.
Thakur had said that pendency of trail was not a bar to contest elections and no such provision was mentioned in the People’s Representation Act. And went on to contest the elections from BJP and despite courting several controversies won the same defeating congress leader Digvijay Singh.
Earlier in May 21, the court had granted exemption to Pragya and other accused from appearing before the court in the bomb blast trail. But this time the court rejected her plea.

Charges of murder, abetment promoting enmity and conspiracy under the Indian Penal Code and several other sections of Unlawful Activities Prevention Act have been filed against Thakur and her accomplices accused in the case that claimed 5 lives and injured many others.

Courtesy: Two Circle

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The United States Court of Appeals for the 9th Circuit has ruled that Trump’s travel ban, the third he has proposed since becoming president, is illegal. Issued in September 2017, the third travel ban, imposed “indefinite and significant restrictions and limitations on entry of nationals” from seven countries —  Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.

Excerpts from the decision:
The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has embodied in the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.

The decision questions Trump’s claim that, as President, he can do whatever he’d like with regard to banning people from any country for any reason.

The Government argues that the President, at any time and under any circumstances, could bar entry of all aliens from any country, and intensifies the consequences of its position by saying that no federal court—not a federal district court, nor our court of appeals, nor even the Supreme Court itself—would have Article III jurisdiction to review that matter because of the consular nonreviewability doctrine. Particularly in the absence of an explicit jurisdiction-stripping provision, we doubt whether the Government’s position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution.

The court also takes on the xenophobia underlying Trump’s order:

In assessing the public interest, we are reminded of Justice Murphy’s wise words: “All residents of this nation are kin in some way by blood or culture to a foreign land.” Korematsu v. United States, 323 U.S. 214, 242 (Murphy, J., dissenting). It cannot be in the public interest that a portion of this country be made to live in fear.
The court issued a limited injunction blocking the ban as it applies to “foreign nationals who have a bona fide relationship with a person or entity in the United States.”

The entire verdict may be read here.
 

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BJP MP Sakshi Maharaj escaped any chastisement from prime minister Narendra Modi in his August 26, 2017 telecast of Mann ki Baat.

“One person has complained of rape against Ram Rahim. Crores others believe he is God. Who do you think is right?” Sakshi Maharaj said, alleging a “conspiracy to defame not only Ram Rahim and other saints, but also Indian culture.” “One person has complained of rape against Ram Rahim. Crores others believe he is God. Who do you think is right?” Sakshi Maharaj said, alleging a “conspiracy to defame not only Ram Rahim and other saints, but also Indian culture.” The BJP member of parliament has also warned that “if even bigger incidents take place, court will also be responsible not just Dera people,” saying, “There is so much of ruckus over it, law and order has been disturbed, people are dying…Shouldn’t this be a consideration?” Ram Rahim, he said, “is a simple man so he is being harassed.”

BJP MP Sakshi Maharaj made this statement in defence of Baba Ram Rahim, who was convicted in a rape case on August 26. A day later prime minister, Narendra Modi grabbed the headlines when he chastised, there was not even one word of public censure for a Member of Parliament of his own party who had by his statement not just triviliased the criminal offence of rape, incited BJP/ Baba Rahim’s followers to more violence and also committed contempt of the court’s decision.

Swami Sachidanand Hari, popularly known as Sakshi Maharaj, has had similar allegations of rape and murder charges on him as Baba Ram Rahim. Maharaj has a total of 34 criminal charges levelled against him, for which trials are ongoing. While one of the murder charges is still being debated in court, the gang-rape charges were dropped due to lack of evidence. Like Ram Rahim, Sakshi Maharaj’s political alliances are well known. He is currently a Member of Parliament under the Bharatiya Janata Party. He became a prominent face for Hindutva due to his involvement in the Ram Janmabhoomi movement. The trial for his involvement in the Babri Masjid demolition is still ongoing. The only time he broke away from BJP was when he was refused a party ticket to contest elections from Farrukhabad in Uttar Pradesh. Maharaj explained that he broke off from BJP and accused that the party’s policies were unfavourable to the poorer and backward sections of the society. He contested the seat as a Samajwadi Party candidate. He was at that time also accused of murder of Brahmdutt Dwivedi , a BJP MLA who also hailed from Farrukhabad. The charges, however, were again dropped, due to lack of evidence.

This Maharaj was even suspended from Rajya Sabha in 2006 on corruption charges. A sting operation had revealed that he had been misusing MPLADS (Members of Parliament Local Area Development Scheme) funds. Star News, who carried out the sting, had claimed that its reporters were able to gain assurance from Sakshi that he would provide money to a fictitious NGO for a “commission”.

Who is Sakshi Maharasj? Sakshi is the director of Sakshi Maharaj Group, under which he owns and operates 16 educational institutions and 44 ashrams across the country. In 2008, Maharaj was again found guilty of misappropriation of MP funds . He had granted Rs 25 lakh to a college he owned himself, even though the documents relating to the institute were found invalid.

Despite multiple serious criminal charges, Maharaj not only continues to be a Member of Parliament, he also successfully operates his own religious movement through the numerous educational institutes and ashrams he owns. His political power gives him the funds for his religious operations, and his huge fan following keeps him in political power. He is the most conspicuous result of the nexus between godmen and government. One of his institutions, Ma Madalsa Vidyalaya, was donated to the RSS.
Maharaj is perhaps known best for his inciteful hate speech.  From blaming Muslims for India’s population problem to saying cow slaughter should be punished with a death penalty or calling Godse a martyr , Maharaj has gotten away with it all, escaping Narendra Modi’s censure, yet again.

Is Sakshi Maharaj too big for the lawmen’s boots? There have been reports of a rape case being quashed by the police in Farrukhabad. The allegations were made by a disciple of his ashram. She still maintains that Maharaj took advantage of her and raped her in the ashram. When the case went to court, the police filed a report saying there hadn’t been any rape. Using his mob muscle, Sakshi Maharaj also has been reported of booth capturing during the elections, when he has been seen going around in a caravan of vehicles with armed guards to capture booths. Even after his weapons were seized, Maharaj won the seat.

India’s Godmen are a disturbing phenomenon —  men who are beyond the reach of the law and the government. These godmen can and have switched allegiances with political parties if any dispute arises, and maintain their power. There is none from the Indian political class who has the vision to take them on.
 

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Image courtesy: nhritortureprevention.org
 
Recently there was again a bit of a hullabaloo about the need for a specific law against torture in India. The practice of torture is endemic to the Indian police and other agencies permitted the right to custodial interrogation. The enforcement directorate, the department of customs and excise and the income tax department have all been indicted for this. In areas where the AFSPA is in force the armed forces of the Union, the army and the para militaries, are said to routinely practice torture.

There is no dearth of evidence of torture. From the Supreme Court down, all levels of courts know this for a fact. One would not be wrong in saying that – in this sense at least – the justice system condones torture.

There is no dearth of evidence of torture. From the Supreme Court down, all levels of courts know this for a fact. One would not be wrong in saying that – in this sense at least – the justice system condones torture. In private a very large number of judges will say that it is impossible to run the country without permitting the police to use third degree methods. 

For the longest time the governments of the day denied the need for a separate law/ mechanism to address the issue of custodial violence and killing. It was argued that the existing law of the land, the IPC, was sufficient to deal with such offences by the police and other agencies. Ultimately the government did come up with a draft law – The Prevention of Torture Bill, 2010. The farcical nature of the draft is evidence of the difficulties that we face in framing such a law. The question here, however, is, do we need such a law?  And, as a corollary, can there be a law that takes care of all or most of the tortures that are inflicted upon people in India? 

An answer to these questions must also address several related issues. For example, we are notorious as a polity that does not implement its laws. The reasons are many (and complex) but the simple fact of non-implementation is sufficient to put a big question mark against the proposal. It is obvious that all the factors that operate to make us a polity with a low index of effective implementation will operate with redoubled force in the case of a law against torture. 

There is also the issue of coming up with effective definitions and descriptions of actions that must be construed as ‘torture’. The 2010 draft bill defines torture as action that “intentionally” inflicts “grievous hurt” or “danger to life, limb or health (whether mental or physical)”, for obtaining “information or a confession” as ‘torture’. It, however, excludes “pain, hurt or danger… inflicted in accordance with any procedure established by law or justified by law” from the definition (section 3, 2010 bill).  Needless to say, the definition is highly inadequate.

I will not dwell upon the ridiculous absurdity of the definition, since it has been taken from a mere draft bill. But it is not unreasonable to assume that the drafters of the bill were not patently malafide or, even less likely, patently stupid. In which case, it would be useful to hazard a guess at the possible reason (or reasons) for such a definition. To a drafter of bills, vagueness and/or lack of precision are the stuff of nightmares. Since, over inclusion and/or under inclusion are among the most common faults when it comes to definitions it seems to me that the drafter of the Torture Bill, 2010 decided to err on the side of caution and render a definition so narrow as to virtually eliminate the offence. Add to this the need to ensure that the definition does not make it impossible for the police to function, and the definition in the Bill becomes (almost) understandable. I would argue that this difficulty would remain in any fresh effort at a law against torture, and any definition that is ultimately adopted is likely to be inadequate, to say the least. 

While extraction of a confession and/or other information about the facts and circumstances of a crime indubitably feature prominently as motive for torture they are far from comprising the whole of it or, even, most of it. Similarly, proscribing the inflicting of hurt, injury, pain, or analogously putting life and limb in danger does not cover all or even most of the ground. For example, Indian law enforcement agencies routinely torture by filing false cases against their chosen victims. They manufacture evidence against such persons, thereby ensuring that the victims are denied bail and spend considerable time in jail even if they are ultimately acquitted. Literally hundreds of thousands of Indians languish in jail every year, as under trial prisoners, for varying lengths of time, many for years. Cases of people being acquitted after a decade or more of incarceration are not uncommon. To my mind this is torture. And, I do not think any “law” against torture will be able to satisfactorily address this aspect of the issue.

The Indian criminal justice system is frequently a conspiracy in which the whole system is complicit. In a system in a state of extreme disrepair impunity (and manipulation) acquires a whole new dimension. The system itself becomes a regime of (invisible) manipulation.

The Indian criminal justice system is frequently a conspiracy in which the whole system is complicit. In a system in a state of extreme disrepair impunity (and manipulation) acquires a whole new dimension. The system itself becomes a regime of (invisible) manipulation because the state of the system makes it virtually impossible to prove the culpability of the actors involved. Besides, probably because of the continual need to deny the actual extent of the collapse, the denizens of such a system become adept at imparting a patina of functionality to the system; thereby rendering the crime (of torture) and its perpetrators, even more invisible.

In such a regime the magistrate before whom an undertrial prisoner is produced can easily get away with failing (or, even refusing) to listen to his complaints of torture. It is not uncommon for magistrates to ignore even flagrant marks of torture while remanding prisoners to judicial custody or, even, further police custody. Besides, as the lowest rung of the justice system, magistrates lead a cheek by jowl existence with the police. Sheer survival requires them to maintain a “balance” in their functioning, and turn a blind eye to such practices. On top of this, an overwhelmingly large percentage of magistrates profess the belief that in India policing is impossible without torture. The fact that 95% or more of the accused that come before them belong to a different (lower) class or caste or are part of a religious ‘other’ helps in rationalising such conduct. 

In such a regime doctors frequently overlook or under report injuries and other signs of torture upon prisoners brought before them for the mandatory medical check-up, immediately after arrest or before and after a spell of police custody. Almost as a corollary, doctors are also amenable to providing off the record treatment to prisoners needing patching up, whenever requested by the police. Thus, the law making such medical examinations mandatory has barely impacted on the incidence of torture in the country, if at all. Nor has it helped in increasing the rate of conviction of police officials accused of custodial violence.

The annals of the justice system of such a regime are full of accounts of prosecutions of police personnel (on charges of torture or custodial death) that resulted in acquittal of most if not all the accused police personnel. In many cases no one is convicted – not police, not doctors, not magistrates – even though a person died while in police custody.  In fact, it is unheard of to prosecute doctors or magistrates, even though they are frequently culpable, at least by the strict liability principles and definitions that are applicable in such cases. 

Yet, the cases go on for years.  As if in recognition of its inability (leavened at least in some measure by its unwillingness) our higher judiciary has evolved an instrument of redress that virtually obviates the need to punish, namely compensation. Once again, it is not uncommon for the high court or, even, the Supreme Court, to dispose of a case with directions to the state to pay compensation to the survivor victims (or victims) of the crime, while the criminal prosecution of the accused police personnel is still in process.

This makes the courts look good: compassionate, caring. Besides the victims/victim survivors are almost invariably people who desperately need the money. Yet, I have not come across a case where the court revisited a case to ascertain the outcome of the criminal prosecution. Since it is only the rare, pig headed, victim/survivor who will likely have the steely determination necessary for seeing the criminal prosecution through, in most cases the order granting compensation is the end of the matter.   

Despite torture being endemic we have virtually no jurisprudence on the subject. Nor do we have reliable statistics, the national crime records bureau and the NHRC/SHRCs notwithstanding. No one follows up criminal prosecutions in cases of custodial torture and death. Inevitably then, we have an endless series of cases of torture and custodial death. It is unlikely that a law on torture will be able to cover cases such as I have described. It is more likely that the agencies involved will come up with new ways of circumventing the new law.

The writer is a senior advocate in the Supreme Court.
 

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UPDATE:

While granting bail, the Supreme Court has commented that the Maharashtra police, the prosecution were extremely unfair

In granting bail, the Supreme Court has commented that the contentions of the Maharashtra government and its police ‘are extremely unfair.’ Further, ‘since the petitioner has never been accused of having misused the concession of bail’, the SC further said that ‘Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner.’  The entire order of the Supreme Court of India granting bail to professor GN Saibaba can be read below.
 
The operative part states that:
‘Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner.
In view of the above, we hereby direct the release of the petitioner on bail forthwith. Bail to the satisfaction of the trial Court.
 
Needless to mention, that the petitioner shall enter appearance before the trial Court, as and when the petitioner is directed to appear before the trial Court, failing which, it shall be open to the trial Court to cancel the concession of bail granted to him.’
 
 
Earlier Story:

The Supreme Court of India has today, Monday, April 4, 2016, granted bail to former Delhi University Professor G.N. Saibaba, who was arrested for alleged links with the Maoists.  Close to 23 months after his arrest in May 2015 he was granted bail, Between July and December 2015 he had been granted interim bail by a division bench of the Bombay High Court that was subsequently cancelled by a Nagpur Bench of the same court.

Professor GN Saibaba, who was arrested in May 2014 for alleged links with the banned Communist Party of India (Maoist) outfit,  He has been in jail since a single-judge bench of the Bombay High Court in Nagpur canceled his bail in December last year. He was initially granted bail in July 2015. The wheelchair-bound professor is more than 90% disabled. He has been paralysed from waist-downwards since contracting polio in childhood.

Saibaba had told sections of the media that his muscles had been damaged while he was being taken to Nagpur from Delhi by the Maharashtra police. While in jail, the inadequate toilet and sleeping facilities caused damage to his left arm ligaments, nerves and his spinal cord. Since obtaining bail in July, the English professor has been undergoing treatment every week at the Indian Spinal Injuries Centre in New Delhi. He had an angioplasty in August.
 
Sabrangindia has been consistently tracking the story. Flawed Verdict: The Bombay High Court judgement refusing bail to GN Saibaba

A copy of his petition before the Supreme Court of India can be read here.

Supreme Court Order on GN Saibaba Case (04.04.2016)

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In the course of the hearing of the matter in the High Court, the Spinal Injuries Centre had prescribed that the petitioner (G.N. Saibaba) can be treated on an OPD basis. This was the sole factor relied upon by the Nagpur Bench of the High Court in denying him bail and cancelling his interim bail. As stated in the petition, in fact Saibaba suffers from several complications including hypertrophic cardiomyopathy and recurrent syncope requiring continuous follow-up and medical interventions.
 
In the 14 months that professor Saibaba remained in judicial custody, the petition states, his health has substantially deteriorated since the prison authorities could not provide him with bedding appropriate to his medical needs. These included low floor transportation to and from hospitals for his treatment; attendants who were trained or equipped to attend to him given his many complications including brittle bones; access to comprehensive, highly specialised, medical care to deal with his many complications and ailments.
 
He was granted medical bail by a Division Bench of the Bombay High Court on account of his deteriorating health while in judicial custody. (This was especially noted by the Division Bench in its order of June 17, 2015, relying on the report of the Chief Medical Officer, Nagpur Central Prison, dated June 16, 2015).
 
Following the December 23, 2015 order of the Nagpur Bench of the same High Court that had earlier granted him interim bail, professor Saibaba returned to judicial custody. There are grave chances that his health would have suffered since.
 
The SLP also states that there is absolutely no likelihood of the petitioner fleeing justice since he has strong roots in society – a mother, wife and child, and a permanent job as assistant professor of English literature at Ram Lal Anand college, University of Delhi
 
 

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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.
 
References:

1. Judicial overreaction; http://www.thehindu.com/opinion/editorial/editorial-on-criminal-contempt-proceedings-by-bombay-hc-against-arundhati-roy-judicial-overreaction/article8026159.ece
2. The contempt notice against Arundhati Roy is yet another reminder of why this law must go http://scroll.in/article/778529/the-contempt-notice-against-arundhati-roy-is-yet-another-reminder-of-why-this-law-must-go

 
 
Timeline
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:
 
 

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