Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Contracts Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Supreme Court of India found the Respondent guilty of contempt for alleging in an affidavit that the Supreme Court was muzzling dissent and criticism. The Court sentenced her to one day’s ‘symbolic’ imprisonment and a fine of Rs. 2000.
The Court reasoned that freedom of speech and expression was not absolute but subject to restrictions prescribed by law, one such law being the Contempt of Courts Act which aims, among other things, to maintain confidence in and uphold the integrity of the judiciary. Further, the Court found that the Respondent’s statements were not made in good faith and in the public interest and therefore could not be considered fair judicial criticism.
This case concerns a suo-moto contempt petition (that is, a petition initiated by the Court on its own motion) against the Respondent, Arundhati Roy, a Booker-prize winning author.
During the course of a writ petition by grassroots-movement Narmada Bachao Andolan, the Court addressed issues of environmental damage and displacement of marginalized communities due to the development of a reservoir dam on the river Narmada. Following a Supreme Court order that allowed for the height of the dam to be increased, the Respondent wrote an article criticizing this decision. Subsequently, protests were staged in front of the gates of the Supreme Court by Narmada Bachao Andolan and the Respondent. This led to contempt proceedings based on a complaint lodged with the police. During the proceedings, all Respondents denied the allegations concerning specific slogans and banners and the proceedings were dropped. However, along with her denial, Roy’s response to the show cause notice criticized the Court for issuing proceedings in the first place. She stated that: “On the grounds that judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting judge to head the judicial enquiry into the Tehelka scandal, even though it involves matters of national security and corruption in the highest places. Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to be people who have publicly […..] questioned the policies of the government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice. It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR [First Information Report] that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.”
On the basis of the above averments, suo moto contempt proceedings were initiated against the Respondent for imputing motives to the Court. In her reply affidavit to the contempt notice, the author reiterated her stance and stressed her continuous dissent against the decision of the Supreme Court. She further noted that she believed this to be a matter of her right to express her opinions as a citizen as well as a writer.
Sethi, J. delivered the Court’s judgment.
The Court firstly stated that freedoms of speech and expression guaranteed by the Constitution are subject to reasonable restrictions imposed by law, one of these being the Contempt of Courts Act which, amongst other objectives, is directed at maintaining the dignity and the integrity of the courts and the judiciary.
It dismissed as irrelevant the Respondent’s argument that the issue of whether truth could be pleaded as a defense to contempt proceedings had to be determined. “Contempt proceedings have been initiated against the
respondent on the basis of the offending and contemptuous part of the reply affidavit making wild allegations against the court and thereby scandalised its authority. There is no point or fact in those proceedings which requires to be
defended by pleading the truth”, it said.
The Court went on to say that the affidavit as a whole was not being considered for contempt but that part which made allegations questioning the integrity of the Court. It stated that the purpose of contempt proceedings was not to preserve an individual judge’s reputation but to maintain public confidence in the judicial system. Judicial criticism must not be based on a gross misstatement and must not be directed at lowering the reputation of the judiciary. In order to be considered fair criticism, the Court said that the statement “must be made in good faith and in the public interest, which is to be gauged by the surrounding circumstances including the person responsible for the comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved.” The Court considered that the Respondent’s statement was not based on any understanding of the law or the judicial system. It said that her statements alleging the judiciary’s willingness to issue notice on “an absurd, despicable, entirely unsubstantiated petition” whilst exhibiting a lack of willingness to entertain a case concerning “national security and corruption in the highest places” and its intention to silence criticism along with her lack of remorse, made it difficult “to shrug off or to hold the [unsubstantiated] accusations made as comments of [an] outspoken ordinary man”.
Accordingly, the Court found the Respondent guilty of criminal contempt and sentenced her to “symbolic” imprisonment of one day and imposed a fine of Rs. 2000 with the proviso that if she failed to pay the fine she would be imprisoned for three months.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In equating criticism of the Court with lowering the reputation of the Court and adequate justification for criminal proceedings, the Court has contracted freedom of expression. Even though no meaningful sentence was imposed and the fine imposed was meagre, the Court referred to the imprisonment as symbolic and convicted the author under the Contempt of Courts Act. This creates a precedent for future litigation under the Act and allows for criminalization of speech that is critical of the courts.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is by a two-judge bench of the Supreme Court which is binding on all lower Courts and future decisions of the Supreme Court, unless overruled by a larger bench.
This link contains a series of documents including the decision of the Court and the affidavit on the basis of which the author was convicted.
Let us know if you notice errors or if the case analysis needs revision.