arundhati roy slp

7/25/2019 Arundhati Roy Slp

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IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL) NO. OF 2016

(WITH PRAYER FOR INTERIM RELIEF)

(Against the order dated 23.12.2015 passed by the Honble HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur in CriminalApplication (BA) No. 785 of 2015)

IN THE MATTER OF:

Arundhati Roy ....... PETITIONER

VERSUS

Registrar, High Court of Judicatureat Bombay, Nagpur Bench, Nagpur ...... RESPONDENT

WITHCr. M.P. No.of 2016

An application for exemption from filingcertified copy of the impugned order

WITHCr. M.P. No.of 2016

An application for permission to file SLP

P A P E R B O O K(FOR INDEX PLEASE SEE INSIDE)

COUNSEL FOR THE PETITIONER:


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I N D E X

Sl.No. Particulars Pages

1.

Office Report on Limitation A2. Listing Proforma A1-

3. Synopsis and List of Dates B-

4.True copy of order dated23.12.2015 passed by theHonble High Court ofJudicature at Bombay,

Nagpur Bench, Nagpur inCriminal Application (BA) No.785 of 2015 (ImpugnedJudgment)

1-

5. Special Leave Petition withAffidavit

6. APPENDIX I

Sections 2, 3, 6, 9, 12, 13, 14

and 15of the Contempt ofCourts Act, 1971

7. ANNEXURE P-1

True copy of Order

dated25.08.2014 in Bail ApplicationNo.485/2014 before theHonble High Court ofJudicature at Bombay,Nagpur Bench, Nagpur

8.

ANNEXURE P-2

True copy of the Petitionersarticle dated 12.05.2014published in OutlookMagazine

9. ANNEXURE P-3

True copy of Order dated17.06.2015 in Criminal PIL

No.04/2015 before theHonble High Court ofJudicature at Bombay

10 ANNEXURE P-4

True copy of Order dated23.06.2015 in Criminal PILNo.04/2015 before the

Honble High Court of


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Judicature at Bombay

11 ANNEXURE P-5

True copy of Order dated26.06.2015 in Criminal PILNo.04/2015 before theHonble High Court ofJudicature at Bombay

12 ANNEXURE P-6

True copy of Order dated30.06.2015 in Criminal PILNo.04/2015 before theHonble High Court of

Judicature at Bombay13 Cr. M.P. No. of 2015

An application for exemptionfrom filing certified copy of theimpugned order


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SPECIAL LEAVE PETITION (CRIMINAL) NO. OF 2016

IN THE MATTER OF:


VERSUS

Registrar, High Court of Judicatureat Bombay, Nagpur Bench, Nagpur ...... RESPONDENTS

OFFICE REPORT ON LIMITATION

1.The Petition (s) is/are within time.

2.The Petition is barred by time and there

is a delay of ____days in filing the same against the order dated 23.12.2015andI.A. for condonation of days of delay has been filed.

3.

There is delay of ________ days in refilling the petition and I.A.for condonation of _________ days of delay in refilling has beenfiled.

BRANCH OFFICERNEW DELHI

Dated: __.01.2016


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PROFORMA FOR FIRST LISTING

SECTION -

The case pertains to(Please tick/check the correct box):

Central Act: (Title) Indian Penal Code 1860; Criminal Procedure

Code

Section : Sections 2, 3, 6, 9, 12, 13, 14 and 15, Contempt of

Courts Act, 1971

Central Rule : (Title) NA

Rule (No(s) NA

State Act: (Title) NA

Section : NA

State Rule : (Title) NA

Rule No(s) : NA

Impugned Interim Order : (Date) NA

Impugned final Order/Decree : (Date) 23.12.2015

High Court: (Name) High Court of Judicature at Bombay,

Nagpur Bench, Nagpur

Names of Judges: A.B. Chaudhari, J.

Tribunal/Authority : (Name) NA

1. Name of Matter: Civil Criminal

2. (a) Petitioner/Appellant No.1: Arundhati Roy

(b) e-mail ID: NA

(c) Mobile Phone Number: NA

3. (a) Respondent No. 1: Registrar, High Court of Judicature at

Bombay, Nagpur Bench, Nagpur(b)e-mail ID: NA

(c) Mobile Phone Number: NA

4. (a) Main category classification:

(b) Sub classification:

5. Not to be listed before: NA

6. Similar/Pending matter: NA


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7. Criminal Matters:

(a) Whether accused/convict has surrendered: Yes No

(b) FIR No: Date:

(c) Police Station:

(d) Sentence Awarded: NA

(e) Sentence Undergone: NA

8. Land Acquisition Matters:

(a) Date of \Section 4 notification: NA(b) Date of Section 6 notification: NA

(c) Date of Section 17 notification: NA

9. Tax Matters: No Tax involved

10. Special Category (first petitioner/appellant only) NA

Senior citizen > 65 years SC/ST women/child Disabled

Legal Aid case In custody

11. Vehicle Number (in case of Motor Accident Claim matters) NA

12. Decided cases with citation: NA

Date: __.01.2016

Advocate for the ____________Registration No.


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SYNOPSIS &LIST OF DATES

That the Petitioner herein seeks leave to challenge the directions no.

(iii) and (iv) in the order dated 23.12.2015, whereby the Honble Court

has directed for registration of criminal contempt case against the

Petitioner.

The Petitioner submits that the impugned portion of the order in

question is not tenable in the eyes of law. The initiation of proceedings

for criminal contempt in the given facts and circumstances is not a

correct exercise of jurisdiction and is not supported by the law laid

down by Constitutional Courts from time to time.

A reading of the contents of the article authored by the Petitioner 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 three crucial aspects of the matter which show that the Honble

High Court has erred in law, are:

1.That no application for bail was pending when the Petitioner 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 25.8.2014. The

article authored by the Petitioner was published by Outlook

magazine on 9.5.2015, a full seven months later. Therefore, there is

no basis to hold that thePetitioner had a malafide motiveor a

game planto interfere in the administration of justice.


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2.The Petitioners article was a bonafide exercise of her Freedom of

Expression. The Petitionerhas stated that clearly that For the sake

of argument lets leave the decision about whether Dr Saibaba is

guilty or innocent of the charges levelled against him to the courts.

And for the moment lets turn our attention solely to the question of

bailbecause for him that is quite literally a matter of life and

death. The Petitioner believed that the question of Dr. Saibabas

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.

3.It is important to note that in an order dated 26th June 2015 in

Criminal PIL No. 04/2015,the Learned Division Bench of the

Honble High Court of Judicature at Bombay 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.Thus, the Honble High Court

of Judicature at Bombay gave a judicial finding holdingthat the

medical condition of Dr. Saibaba required immediate medical

attention, and hence he was entitled to be released on temporary

bail. The Learned Division Bench comprised of the Honble the

Chief Justice of the Bombay High Court and Honble Justice S.B.

Shukre, who had previously dismissed the bail application of the

prisoner in question. Therefore the Learned 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


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grant of relief under the writ of mandamus. This further vindicates

the stand taken by the Petitioner in her article regarding the

question of bail being one of life and death for Dr. Saibaba.In these

circumstances, the Petitioners 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 Learned Division

bench 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 Prof.Saibaba.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 anexpressionof 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.

The Petitioner has no other remedy but to approach this Honble

Court since if the impugned proceedings are allowed to continue, it

will have an irreversible adverse effect on her fundamental rights,

including the Freedom of Speech, as guaranteed under the

Constitution of India.


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The impugned proceedings are also contrary to the provisions of the

Constitution of India which enshrines a welfare democratic State. In

the impugned order, the Learned Judge has observed that Instead of

challenging the orders passed by Sessions Court and the learned

Single Judge of this Court, the author appears to have invented a novel

idea of bashing the Central Government, the State Government, the

Police machinery so also judiciary and that was, prima facie, with a

malafide motive to interfere in the administration of justice.It is

submitted that if the application of the law of criminal contempt

isexpanded to include strictures against any criticismof the Police

and/or the Government, then there remains nothing of the notion of

opposition which is the very life-blood of a democratic society.The

Indian Constitution doesnot envisage a society in which the idea of

Opposition and the right to express oppositional ideas is to be

limited tothe institutions of Parliament or the State Assemblies or

courtrooms alone.

By criticising the actions or the lack thereof, of the Legislature,the

Judiciary or the Executive, a citizen is merely exercising his or her

fundamental right to express Opposition to the Government or one

of its wings. Such opposition isfundamental to the very meaning of

Democracyand should be recognised as a basic feature of the

Constitution of India. Opposition is sacrosanct and indispensable to

the functioning of Democracy, and more so to that of a democratic

welfare state; it cannot and must not, be limited to the houses of the

Legislature. Free and fair opposition, frank expression of opinion, and


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rightful disagreement with the policies and actions of those governing,

are fundamental rights of citizens.

The impugned portion of the order does not recognise these aspects,

and is contrary to the law laid down by this Honble Court, and

therefore, the Petitioner craves judicial intervention by this Honble

Court.

The Petitioner seeks protection of her fundamental right to the

Freedom of Expression, and is at pains to point out the far reaching

adverse impact that would be caused if contempt proceedings are

initiated against her,as they have been in the present case. In the

absence of a well founded basis in law, as has been pointed out in the

grounds set forth below, the very trial of the Petitioner 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 genuine opposition, to any of the actions or

policies of the Government.

Abundans cautela, the Petitioner seeks to point out that a bare

reading of her entire article would reveal that the said 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 its image.The timeline of

events is as follows:


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09.05.2014

to

30.06.2014

and from

25.12.2014

Dr G.NSaibaba, 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.

25.08.2014 Dr.G.N. Saibabas Bail Application No. 485/2014

was heard and dismissed by the Learned Single

Judge of the Honble High Court of Judicature at

Bombay, Nagpur Bench, Nagpur. A true copy of

the Order dated 25.08.2014 in Bail Application

No.485/2014 before the Honble High Court of

Judicature at Bombay, Nagpur Bench, Nagpur, is

annexed herewith and marked as Annexure P-1

(pages _____ to _____).

09.05.2015 Exactly one year after the day of Dr. Saibabas

arrest, Outlook magazine published an article by

the Petitioner detailing the factual backdrop of the


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arrest, the adverse impactthat the year long

incarceration had had on the health of

Dr.Saibaba.

A bare reading of the article will demonstrate that

the Petitioners narrative of the entire episode was

informed by Prof. GNSaibabas 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 Honble High Court of

Judicature at Bombay, at Mumbai, in Criminal

PIL No. 04/2015.

The Petitioners refrain throughout the article

centers around the arrest and continued

detention of Dr.Saibaba, despite his severe

disability and worsening health. The

Petitionerwrites that as a signatory to

international treaties and protocols, India had

specific obligations and duties concerning

thetreatment of people with disabilities.

The article accurately and journalistically

recounts the facts and circumstances of

Dr.Saibabasdetention and the dismissal of his

bail applications by the Sessions Court, as well as


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the subsequent deterioration in his health.

The Petitioner 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 Honble Court, to which she has barely

alluded.

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 has a gameplan, imputed to it.

The Petitioners perspective is based wholly on

facts relating to Dr.Saibabas medical condition,

and is completely in line with the observations of

the Honble High Court in Criminal PIL No.

04/2015.A true copy of the Petitioners article

published in Outlook Magazine on 09.05.2015 is

annexed herewith and marked as Annexure P-2

(Pages ________ to __________).

10.06.2015 On the basis of an email byMs.PurnimaUpadhyay,

a social activist,who relied upon a report about


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the physical condition of Dr Saibaba written by

Mr.PavanDahat in an article in The Hindu dated

08.05.2015, the Honble High Court of Judicature

at Bombay, took suomotu cognizance of the

incarceration of Prof. Saibaba and registered

Criminal PIL No. 04/2015.

17.06.2015 In Criminal PIL No. 04/2015, the Honble High

Court examinedthe medical report of the Chief

Medical Officer, Prison Hospital, Central Prison,

Nagpur, which detailed the worsening medical

condition of Prof. Saibaba and the onset of further

medical complications which required surgery,

including angioplasty. On the basis of the said

medical report, the Honble 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 Prof. 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 Honble 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.

A true copy of the Order dated 17.06.2015in


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Criminal PIL No.04/2015 before the Honble High

Court of Judicature at Bombayis annexed

herewith and marked as Annexure P-3 (Pages

________ to _________).


Court tooknote of the fact that further tests were

required to ascertain Dr. GNSaibabas 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

16.06.2015 by the State, as brought out by the

Petitioner insofar as disallowing Dr. Saibabas

family to stay by his side during the course of

treatment, was also taken note of by the Honble

High Court. A true copy of Order dated

23.06.2015 in Criminal PIL No.04/2015 before

the Honble High Court of Judicature at Bombay

is annexed herewith and marked as Annexure P-

4 (Pages _____ to _____).

26.06.2015 In Criminal PIL No. 04/2015, the Petitioner

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 Honble High Court observed that the


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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. A true copy of the Order dated

26.06.2015 in Criminal PIL No.04/2015 before

the Honble High Court of Judicature at Bombay

is annexed herewith and marked as Annexure P-

5 (Pages ________ to _________).


Court granted temporary bail for a period of 3

months to Dr. GN Saibaba, inter aliaobserving:

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.


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xxxxx

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

Prof.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

Prof. 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.

A true copy of the Order dated 30.06.2015 in

Criminal PIL No.04/2015 passed by the Honble

High Court of Judicature at Bombay, is annexed

herewith and marked as Annexure P-6 (Pages

__________ to __________).

November

2015

In 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 Honble High

Court of Judicature at Bombay, Nagpur Bench,

Nagpur for consideration on merits.It was

registered as Criminal Application (BA) 785/2015.


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23.12.2015 In Criminal Application (BA) 785/2015, the

Honble High Court of Judicature at Bombay,

Nagpur Bench, Nagpur, dismissedDr.Saibabas

bail application.Also, without any prior warning

or impleadment, it issued notice of criminal

contempt (returnable on 25.01.2016) to the

Petitioner,who was not even party to the bail

proceedings. The notice of criminal conte

mpt was

based on a highly selective reading of the

Petitioners aforementioned article published in

Outlook magazine. Words and phrases in the

articlehave been reproduced in the impugned

order sanscontext, or in an entirely different and

unintended context, and without taking into

account the fact that there is not a single allusion

to mala fidemotives of any judicial body or court.

The Honble High Court has neglected to see that

the Petitioners perspective 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 Division

Bench of that Honble Court, at Mumbai

(IMPUGNED ORDER).

__.01.2016 Hence the present petition.


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IN THE SUPREME COURT OF INDIA[S.C.R., Order XXII Rule 2(1)]

CRIMINAL APPELLATE JURISDICTION(Under Article 136 of the Constitution of India)

SPECIAL LEAVE PETITION (CRL) NO. OF 2016(Against the order dated 23.12.2015 passed by the Honble HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur in CriminalApplication (BA) No. 785 of 2015)

(WITH PRAYER FOR INTERIM RELIEF)

IN THE MATTER OF:

Position

of Parties

Trial Court In theHigh Court

In thisHonbleCourt

rundhati Roy2A, Kautilya MargNew Delhi-110 021

Not Party Contemnor Petitioner

VERSUS

1.Registrar, HighCourt ofJudicature atBombay, NagpurBench, Nagpur

2.State ofMaharashtra

Through itsSecretary, HomeDepartment,Government ofMaharashtraMumbai-400 032

3.Dr. GokarakondaNaga SaibabaWardens House,Gwyer Hall,University Road,Delhi UniversityNew Delhi-110007

Not a Party

Prosecution

Accused

Not a party

Respondent

Petitioner

RespondentNo.1(ContestingRespondent)

RespondentNo.2

RespondentNo.3

(Respondent No 2 and 3 are Proforma Respondents)


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To,THE HONBLE THE CHIEF JUSTICE OF INDIA AND HISCOMPANION JUDGES OF THE HONBLE SUPREME COURTOF INDIA.

THE HUMBLE PETITION ON BEHALF OF THEPETITIONER ABOVE NAMED

THE SPECIAL LEAVE PETITION OF THE PETITIONER

MOST RESPECTFULLY SHOWETH1.That the instant Special Leave Petition is directed against the

order dated 23.12.2015 passed by the Honble High Court

Judicature at Bombay, Nagpur Bench, Nagpur,in Criminal

Application (BA)No. 785 of 2015wherein the Honble Court

directed registration of criminal contempt against the

Petitioner, and issued notice of the same returnable for

25.01.2016.

1A.That no LPA or Appeal to Division Bench lies against the

impugned order, and therefore no other proceeding has been

undertaken by the present Petitioner except for preferring the

present SLP.

1B. That the Honble High Court has taken suo-moto cognizance and

hence, the Registrar, High Court of Judicature at Bombay, Nagpur

Bench, Nagpur, is being arrayed as respondent No.1.

2.QUESTIONS OF LAW:

A.Whether drawing attention to a prisoner who is 90%

disabled being denied bail amounts to scandalizing the

court and committing criminal contempt of court?

B.Whether the fundamental right of Freedom of Expression

should be read so as to contain an implicit and inherent

protection against any proceedings that have a chilling


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effect on the exercise or the realisation of this right? If yes,

should the threshold of the initiation of contempt

proceedings be set taking great care to prevent any adverse

impact it might have on the fundamental right to the

Freedom of Expression?

C.Whether opposition and the right to express oppositional

views are inherent to Democracy and whether the right to

oppose is necessary for the democratic functioning of any

Government? If so, whether that needs to be recognised as

such by this Honble Court by the formulation of a suitable

interpretation of the provisions of the Constitution of India?

As also formulations about whether opposition and right

to oppose, being inherent to Democracy are also part of the

basic structure of the Constitution of India?

D.Whether the impugned portion of the order is or is not in

accordance with the spirit and letter of the law laid down by

this Honble Court?

E.Whether the initiation of contempt proceedings against the

Petitioner in the given facts and circumstances,is untenable

in law?

F.Whether the allegation of interference with administration

of justice, which is the very basis of initiation of

proceedings for criminal contempt, is wholly unfounded,

since no bail application was pending when the Petitioners

article was published?

3.DECLARATION IN TERMS OF RULE 2(2):


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That the Petitioner has not filed any other petition in this

Honble Court against the order dated 23.12.2015 passed by

theHonble High Court Judicature at Bombay, Nagpur Bench,

Nagpur, in Criminal Application (BA) No. 785 of 2015.

4.DECLARATION IN TERMS OF RULE 4:

The Annexures P-1 to P-6 produced along with the Special

Leave Petition are true copies of the pleadings/documents

which formed part of the records of the case in the Court

below against which order the leave to appeal is sought for in

this petition.

5.GROUNDS:

A.Because, the impugned portion of the order dated

23.12.2015 in so far as it seeks to initiate proceedings for

criminal contempt against the Petitioner, is bad in law. This

Honble Court has held, that the question of whether or not

contempthas been committed,is a serious question. On the

other hand, the manner in which contempt proceedings

have been initiated against the Petitioner, does not adhere

to the letter and spirit of the law laid down by this Honble

Court.

B.Because, the finding of the Honble High Court that a

careful reading of the above passages from the article clearly

reveals a game plan of the author to have an order of bail on

merits as well as on medical grounds for the applicant,

knowing fully well that the plea for bail was turned down by

the Sessions Court as well as Single Judge of this Court is

wholly and ex-facie baseless:

a.The allegation that Petitioner had a game plan to get

an order of bail is unfounded. There is no material to

support such imputation. There is no basis of this


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allegation inasmuch as there was no pending bail

proceeding when the article was published. Therefore,

there cannot be even the remotest possibility of

interfering with the judicial process, in the absence of

a pending proceeding for bail.

b.The Petitioner did nothing more than criticize the

approach adopted by the Police and the Government

authorities, on which there is no embargo or

hindrance under any law. Thus, the action on part of

the Petitioner was completely in accordance with the

law.

c. It is not unknown that articles are written about the

outcome of Court cases, and people take positions one

way or the other regarding the judicial verdict. In the

present case, the Petitioner has acted bonafide and in

complete deference of the Courts, which is writ large in

her article. The Petitioner clearly states, in no

uncertain terms, that the decision of guilt or innocence

of Dr. Saibaba is to be left to the courts. However,

taking note of the plight of Dr. Saibaba, the Petitioner

further stated that the question of bail for him was

actually a question of life and death. This cannot be

construed either as a game plan or as having any

malafide motive forinterference with administration

of justice. As stated hereinabove, there was no

pending bail application, and further, the medical

condition of Dr. Saibaba was such that the Division

Bench of the Honble High Court of Bombay itself had

exercised its extraordinary constitutional jurisdiction

under Article 226 to grant him temporary bail.

C.Because, the further observation by the Honble High Court

bring to fore the fact that the Petitioner is sought to be

hauled up on a criminal charge merely for a frank, candid,


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and true disclosure of her opinion. It is revealed from the

belownoted observation that the Honble High Court had not

adhered to the rule and letter of law in the perceived basis

laid down in the order for initiation of contempt

proceedings.

Instead of challenging the orders passed by Sessions Court

and the learned Single Judge of this Court, the author

appears to have invented a novel idea of bashing the Central

Government, the State Government, the Police machinery so

also judiciary and that was, prima facie, with a mala fide

motive to interfere in the administration of justice.

This assumption by the Honble High Court is at variance

from the established procedure known to the law. The

Petitioner had no cause or concern to challenge the orders

of Courts denying bail. The Petitioner was reflecting on the

case of the prisoner in question, and had said nothing

about the judiciary which was an insinuation. All facts

given in the article were true, and all other assertions were

a matter of belief. If the standard adopted by the Honble

High Court is allowed to sustain, then any citizen of the

country who seeks to criticise the order of a court, will be

required to challenge the order themselves, which is against

the accepted canons of fair criticism of judicial action, as

laid down by this Honble Court.

D.Because, the belownoted observation of the Honble High

Court is also suggestive of personal remarks against the

Petitioner, which were wholly unwarranted.

The language used by the author in her article against the

Government and the police machinery is as nasty as it could

be and one really wonders whether the same would befit to

the prestigious awards the author is said to have won.


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E.Because, the Honble High Court has not considered the

material on record, and has not given a correct reading or

rendition of the contents of the article in question, before

initiating contempt proceedings. E.g.

Observation of theHonble Court

Relevant excerptfrom the Article

Calling theGovernment andpolice as beingafraid of the

applicant,abductor andthief and theMagistrate from asmall town,demonstrate thesurly, rude andboorish attitude ofthe author in the

most tolerantcountry like India.

On September 12,2013, his home wasraided by 50policemen armed

with a searchwarrant for stolenproperty from

aMagistrate in Aheri,a small town inMaharashtra.

F.Because, the direction to initiate proceedings for criminal

contempt is wholly unfounded, in the present facts and

circumstances. Contrary to what has been stated in the

impugned order, there was no way in which the Petitioner

could have been attempting to interfere in the

administration of justice with a malafide motive simply

because there was no pending bail proceeding in which the

Petitioner could have tried to interfere. The Court itself has

noted that the previous proceeding for bail had come to an

end by dismissal of bail on 25.08.2014 itself. The article of

the Petitioner was published a full seven months later, on

9thMay 2015. Thus, there could not be even a remote case

of interference attempted by the Petitioner. Secondly, the

standard set by this Honble Court regarding criminal


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contempt is very high. In Dinesh Kumar Gupta v. United

India Insurance, 2010-12-SCC-770, this Honble Court

has held that even non-implementation of order of the

Court does not amount to criminal contempt, and a case at

best arises of civil contempt. Thus, initiation of proceedings

for criminal contempt do not appear to have any basis in

law.

G.Because, the Honble High Court failed to note that there

was a complete absence of a motive or intention on part of

the Petitioner to lower the esteem or majesty of Courts.

There was also no malafide in authoring the article.

H.

Because, this Honble Court, vide a Constitution Bench in

Baradakanta Mishra v. Registry Orissa High Court

1974-1-SCC-374,has held that in case of contempt, past

conduct (violations) should not prejudice judicial appraisal

of the conduct in question.

I. Because, the very fact that a Division Bench of the selfHigh

Court found it to be a fit case deserving interference under

the extraordinary jurisdiction under Art. 226, makes it clear

that the Petitioner was not unfounded in her belief and

conviction regarding the plight of the prisoner in question.

Therefore, her expression ought tobe read in the context of

subsequent judicial action, and not in detachment thereto.

Contrary to the findings of the Honble Court in the

impugned order, the ld. Division Bench found it a fit case


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for judicial interference and providing ad-interim medical

aid to the prisoner in question. This eliminates even the

very basis of imputation of a motive on part of the Petitioner

to obstruct justice or lower the image of judiciary, and

makes the impugned order wholly unsustainable in law.

6.GROUNDS FOR INTERIM RELIEF

The Petitioner has a very strong prima facie case on factsand

is likely to succeed in the case. Balance of convenience lies in

favour of the Petitioner and against the Respondent. In case

the interim reliefs prayed for hereunder are not granted, the

Petitioner shall suffer irreparable harm and injury as she

would be required to travel to Nagpur, hire lawyers and

subject herself to the trial in the matter of criminal contempt

initiated by the Honble High Court of Judicature at Bombay,

Nagpur Bench, Nagpur.

7.PRAYER

In the circumstances set forth above, it is therefore, most

respectfully prayed that your lordships may graciously be

pleased to:

a)Grant Special Leave to Appeal against the order dated

23.12.2015 passed by the Honble High Court Judicature at

Bombay, Nagpur Bench, Nagpur in Criminal Application

(BA) No. 785 of 2015; and

b)Pass any other or further orders as may be deemed fit and

proper in the circumstances of the case.


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8.PRAYER FOR INTERIM RELIEF



pleased to:

a.Stay the impugned order dated 23.12.2015 passed by the

Honble High Court Judicature at Bombay, Nagpur

Bench, Nagpur in Criminal Application (BA) No. 785 of

2015during the pendency of the present petition; and

b.Pass any other or further orders as may be deemed fit

and proper in the circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTYBOUND SHALL EVER PRAY.

DRAWN BY FILED BY: PRASHANT BHUSHAN(RISHABH SANCHETI) ADVOCATE FOR THE PETITIONER

Drawn on: __.01.2016Filed on: __.01.2016


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IN THE MATTER OF:-


VERSUS


CERTIFICATE

Certified that the Special Leave Petition is confin

ed only to thepleadings before the Court/Tribunal whose order is challenged andthe documents relied upon in those proceedings. No additionalfacts, documents or grounds have been taken or relied upon in theSpecial Leave Petition. It is further certified that the copies of thedocuments/annexure attached to the special leave petition arenecessary to answer the questions of law raised in the petition for

consideration of this Honble Court. This certificate is given on thebasis of the instructions given by the petitioner(s)/personauthorized by the petitioner(s) whose affidavit is filed in support ofthe Special Leave Petition.

FILED BY

(PRASHANT BHUSHAN)ADVOCATE FOR THE PETITIONER

FILED ON: __.01.2016


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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION


IN THE MATTER OF:-


VERSUS


AFFIDAVIT

I, Arundhati Roy, D/o ____________ , Aged Abo

ut __ Years, Resident

of _______________________, presently at New Delhi, do hereby

solemnly affirm and state as under:-

1. That I am the petitioner in the present petition and as such

am conversant with the facts and circumstances of the case and am

competent to swear this affidavit.

2. That I have read List of dates and Special Leave Petition and have

understood the same fully.

3. That the contents of pages B to ___ of list of dates and paras 1 to __

of Special Leave Petition at pages to are true to my knowledge and

belief.

4. That I have gone through the contents of the Criminal

Miscellaneous Petitions. I say that the contents thereof are true and

correct to my knowledge and belief.

5. That all the Annexures are true and correct copies of their

respective originals.

DEPONENT


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VERIFICATION:

Verified at by me on this the __ day of January 2016 at New

Delhithat the contents of the above affidavit are true and correct to

my knowledge and belief, no part of it is false and nothing material

is concealed there from.

DEPONENT


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APPENDIX I

CONTEMPT OF COURTS ACT, 1971

2. Definitions In this Act, unless the context otherwise requires

(a) Contempt of court means civil contempt or criminal contempt

(b) Civil contempt means willful disobedience to any judgement,

decree, direction, order, writ or other process of a court or willful

breach of an undertaking given to a court.

(c) Criminal contempt means the publication (whether by words,spoken or written, or by signs, or by visible representation, or

otherwise) of any matter or the doing of any other act whatsoever

which-

(d) Scandalizes or tends to scandalize, or lowers or tends to lower

the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course

of any judicial proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to

obstruct, the administration of justice in any other manner.

(e) High Court means the High Court for a State or a Union

territory and includes the court of the Judicial Commissioner in any

Union territory.

3. Innocent publication and distribution of matter not

contempt

(1) A person shall not be guilty of contempt of court on the ground

that he has published (whether by words, spoken or written, or by

signs, or by visible representations, or otherwise) any matter which

interferes or tends to interfere with, or obstructs or tends to

obstruct, the course of justice in connection with any civil or

criminal proceeding pending at that time of publication, if at that

time he had no reasonable grounds for believing that the proceeding

was pending.

(2) Notwithstanding anything to the contrary contained in this Act

or any other law for the time being in force, the publication of any


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such matter as is mentioned in sub-section (1) in connection with

any civil or criminal proceeding which is not pending at the time of

publication shall not be deemed to constitute contempt of court.

(3) A person shall not be guilty of contempt of court on the ground

that he has distributed a publication containing any such matter as

is mentioned in sub-section (1), if at the time of distribution he had

no reasonable grounds for believing that it contained or was likely

to contain any such matter as aforesaid:

Provided that this sub-section shall not apply in respect of thedistribution of

(i) any publication which is a book or paper printed or published

otherwise than in conformity with the rules contained in section 3

of the Press and Registration of Books Act, 1867 (25 of 1867);

(ii) any publication which is a newspaper published otherwise than

in conformity with the rules contained in section 5 of the said Act.

6. Complaint against presiding officers of subordinate courts

when not contempt-

A person shall not be guilty of contempt of court in respect of any

statement made by him in good faith concerning the presiding

officer or any subordinate court to

(a) Any other subordinate court, or

(b) The High court to which it is subordinate.

Explanation In this section, subordinate court means any court

subordinate to a High court

9. Act not to imply enlargement of scope of contempt-

Nothing contained in this Act shall be construed as implying that

any disobedience, breach, publication or other act is punishable as

contempt of court which not be so punishable apart from this Act.

12. Punishment for contempt of court


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(1) Save as otherwise expressly provided in this Act or in any other

law, a contempt of court may be punished with simple

imprisonment for a term which may extend to six months, or with

fine which may extend to two thousand rupees, or with both.

Provided that the accused may be discharged or the punishment

awarded may be remitted on apology being made to the satisfaction

of the court.

Explanation An apology shall not be rejected merely on the

ground that it is qualified or conditional if the accused makes itbona fide.

(2) Notwithstanding anything contained in any law for the time

being in force, no court shall impose a sentence in excess of that

specified in sub section for any contempt either in respect of itself

or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a

person is found guilty of a civil contempt, the court, if it considers

that a fine will not meet the ends of justice and that a sentence of

imprisonment is necessary shall, instead of sentencing him to

simple imprisonment, direct that the he be detained in a civil prison

for such period not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of

any undertaking given to a court is a company, every person who,

at the time the contempt was committed, was in charge of, and was

responsible to, the company for the conduct of business of the

company, as well as the company, shall be deemed to be guilty of

the contempt and the punishment may be enforced, with the leave

of the court, by the detention in civil prison of each such person.

Provided that nothing contained in this sub section shall render any

such person liable to such punishment if he proves that the

contempt was committed without his knowledge or that he

exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub section (4) where the

contempt of court referred to therein has been committed by a

company and it is provided that the contempt has been committed


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with the consent or connivance of, or is attributable to any neglect

on the part of, any director, manger, secretary or other officer of the

company, such director, manager , secretary or other officer shall

also be deemed to be guilty of the be contempt and the punishment

may be enforced, with the leave of the court, by the detention in

civil prison of such director, manager, secretary or other officer.

Explanation For the purpose of sub sections (4) and (5)-

(a) Company means any body corporate and includes a firm or

other association of individuals, and

(b) Director in relation to a firm, means a partner in the firm.

13. Contempts not punishable in certain cases-

[13. Contempts not punishable in certain cases.Notwithstanding

anything contained in any law for the time being in force,

(a) no court shall impose a sentence under this Act for a contempt

of court unless it is satisfied that the contempt is of such a nature

that it substantially interferes, or tends substantially to interfere

with the due course of justice;

(b) the court may permit, in any proceeding for contempt of court,

justification by truth as a valid defence if it is satisfied that it is in

public interest and the request for invoking the said defence is bona

fide.]

15. Cognizance of criminal contempt in other cases-

(1) In the case of a criminal contempt, other than a contempt

referred to in section 14, the Supreme Court or the High Court may

take action on its own motion or on a motion made by

(a) the Advocate-General, or

(b) any other person, with the consent in writing to the Advocate-

General,1[or]

1[(c) in relation to the High Court for the Union territory of Delhi,

such Law Officer as the Central Government may, by notification in


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the Official Gazette, specify in this behalf, or any other person, with

the consent in writing of such Law Officer.]

(2) In the case of any criminal contempt of a subordinate court, the

High Court may take action on a reference made to it by the

subordinate court or on a motion made by the Advocate-General or,

in relation to a Union territory, by such Law Officer as the Central

Government may, by notification in the Official Gazette, specify in

this behalf.

(3) Every motion or reference made under this section shall specify

the contempt of which the person charged is alleged to be guilty.

//TRUE COPY//


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IN THE MATTER OF:-


VERSUS


AN APPLICATION FOR EXEMPTION FROMFILING CERTIFIED COPY OF THE IMPUGNED

ORDER

To,

Honble the Chief Justice of India and his othercompanion judges of Honble Supreme Court.

The humble Petition of theabovenamed Petitioner:-

MOST RESPECTFULLY SHEWETH:

1.That the Petitioner is this day filing accompanying Special Leave

Petition against the against the order dated 23.12.2015 passed

by the theHonble High Court Judicature at Bombay, NagpurBench, Nagpur in Criminal Application (BA) No. 785 of 2015

wherein the Honble Court directed institution of criminal

contempt against the Petitioner.

2.That the relevant facts in the matter have already been stated in

the Special Leave Petition and are not being repeated herein for

sake of brevity. The petitioner craves leave of this Honble Courtto refer to and rely upon the same for the purposes of the

present application as well.

3.That directions were issued vide impugned order on passed on

23.12.2015 to institute criminal contempt proceedings against

the Petitioner without any warning in a wholly disconnected bail

application to which the Petitioner was not even a party.


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4.That notice has been issued to the Petitioner vide the impugned

order returnable for 26.01.2016 and as such the matter being of

urgency and affecting the life and liberty of the Petitioner herein,

there was insufficient time to secure a certified copy of the

impugned order.

5.That since the matter is of great urgency hence the petitioner be

allowed to file the present Special Leave Petition in light of the

facts and circumstances stated above. That it will be in the

interest of justice that the petitioners are allowed to file the

present Special Leave Petition.

PRAYER



pleased to:

a)

exempt the petitioner from filing certified copy of the impugned

against the theorder dated 23.12.2015 passed by the

theHonble High Court Judicature at Bombay, Nagpur Bench,

Nagpur in Criminal Application (BA) No. 785 of 2015;and

b) pass any other or further orders as may be deemed fit and

proper in the circumstances of the case.

DRAWN BY FILED BY

RishabhSancheti

(PRASHANT BHUSHAN)Advocate for the Petitioner

FILED ON : __.01.2016


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Appendix

EXCERPTS FROM THE CONSTITUENT ASSEMBLY DEBATES

CONSTITUENT ASSEMBLY OF INDIA - Volume VIII

Friday, the 20th May 1949

The Constituent Assembly of India met in the Constitution Hall,

New Delhi, at Eight of the Clock, Mr. President (The Honourable Dr.

Rajendra Prasad) in the Chair.

Maulana Hasrat Mohani (United Provinces: Muslim): Mr.

President,

Sir, I beg to bring to your notice a very serious matter about the

suppression of a major portion of the proceedings of this House as

published in the Constituent Assembly Debates of the 5th January

1949 (page 1267). The proceedings say that the Honourable Sardar

Vallabhbhai Patel moved that the Bill to amend the Government of

India Act be taken in to consideration. As a matter of fact, he moved

for level to introduce the Bill I wanted to oppose that motion and

urged that I had a right to do so at that stage. But the Vice-

President did not allow me to speak. He declared that if I wanted to

say anything he would put it o the vote; it was rejected. Non of

these in the printed Report. Who is responsible for suppressing

these things? I want that all these things should be placed in theprinted processing, so that people may know that the Vice-President

did not wish to hear anybody whom he did not like.

This is a very serious matter and I would invited your attention to

it.

Mr. President: I understand the honourable Member's point to bethat certain things happened in the last Assembly which do not

appear in the printed proceedings, and his complaint is that a

correct report should have been given of all that happened there. I

am not aware off what happened at that stage and I cannot say

anything without looking in to the matter. If the honourable


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Member has got any complaint he may kindly give it to me in

writing so that I may have it investigated.

DRAFT CONSTITUTION-(Contd.)

*

Article 86

Mr. President: Article 86.

(Amendment Nos. 1632 and 1633 were not moved.)

Mr. Z.H. Lari (United Provinces: Muslim): Sir, I moved:

"That in article 86 the words 'and until provision in that respect is

so made allowance at such rates and upon such conditions as were

immediately before the date of commencement of this Constitution

applicable in the cause of members of the legislature of the

Dominion of India' be deleted and the following new proviso be

inserted:-

'Provided that salary payable to members of the Parliament shall

not be less than one-fourth or more than one-third payable to a

Cabinet Minister:

And provided further that the Leader of the Opposition shall be

entitled to get salary payable to a Minister without Cabinet rank.' "

Sir this amendment consists of three parts, but it is the third part

which is the soul of the amendment and I will take it first. It is that

a salary be fixed for the Leader of the Opposition. The House knows

well, and it may take it from me as gospel truth, that I have not in

me the germs of a future Leader of the Opposition. But I move it for

four weighty reasons. Firstly, I feel that it is necessary to promote

parliamentary opposition which along with the rule of law and a

strong press constitutes the bulwark of democracy. Secondly, I

want to give statutory recognition to the institution of

parliamentary opposition, which unfortunately has come to be


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regarded in certaincircles as tantamount to sedition, and thereby

dispel a misconception. Thirdly, I want to create conditions in

which a dead chamber may revive into a lively legislature. And

lastly, I want to complete the edifice of parliamentary democracy

which is being transplanted from the surroundings of England to

Indian environments. With your permission, Sir, I will elucidate

these four points I have mentioned.

In spite of strenuous efforts made by some Members, this House

rejected the conception of Presidential Cabinet that prevails in

America. Even the solution of a coalition cabinet that is in vogue in

Switzerland did not find favour with the House which has approved

the system of party government as obtains in England. This Party

government means that the powers of the state for the time being

arevested in a party and through that party in a number of

individuals. Every one knows that power corrupts and absolute

power corrupts absolutely. It is also a truism to say that every party

that comes into power tries to make its hold permanent. The only

check on degeneration of party government in to a despotism is the

existence of another party which keeps a strict eye on the doings of

the cabinet and the party and thereby prevents degenerations in to

a party government into a dictatorship. Besides, there cannot be a

proper functioning of any party government unless there is constant

criticism of the doings of that party. There is always discussion and

at least correction of various policies that are pursed by that party.

Apart from that I feel that in the absence of an alternative party the

very party which is in power begins to disrupt and cliques grow

thereunder. If you look, not beyond the seas, but within all the

party governments as they obtained in India during the last ten

years, in all those legislatures where there was no effective

opposition, not only have Cabinet members begun to resent

criticism but in the parties themselves there have grown factions

which have led to the downfall of one ministry after another. There

have been challenges, counter-challenges, and there have been

attacks even on the ground of misappropriation of public money


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and the like. The reasons is that the party government is not

brought face to face with a strong opposition to make them feel that

they have to face public opinion. And who is to create public

opinion? Who is to make the public aware and take interest in the

doings of Government, unless there is oppositions in House to bring

all the actions of Government in to the lime-light? Everyone knows

that in these days the functions of Government have grown and any

party which wants to be wide-awake and effective must be a whole

time opposition. You can not have a whole-time opposition unless

there is a leader who devotes all his time and energy to fosteringresponsible opposition throughout the country. It is not necessary

only to have an opposition in the House, but that opposition

must be broad-based; it must have public opinion throughout

the country to back it. I therefore feel that you can not have a

vigorous and wide-awake opposition working in the legislature and

outside unless it has a leader who is a whole-time worker and it

paid, as is done in England and other countries.

You know that so long as the conservatives or the other rich peoplewere one party or the other in Opposition in England, there was nonecessity of paying the Leader of the Opposition. But, the momentLabour formed the Opposition in England- I dare say that in Indiais it only either the Socialist or the Communists that can form theopposition-they fixed salaries for the Leader. In India, as I said, you

can have Opposition of only middle class people. You can not expectthat class to throw up a man who will devote all his time and all hisenergy to create a party unless he paid. Therefore I feel that in theinterest of creating and effective opposition as soon as possible it isnecessary that we would have a provision like that which I haveplaced before you.

But, besides this, as I suggested at the outset, during the last tenyears there has not been any effective Opposition at all either in the

Dominion Parliament or in the Provincial Assemblies. The result isthat there have been utterances from certain responsible personswhich have gone to suggest as if the party and the State are same. Iknow of them, but I do not want to place before the House thoseutterances and create misunderstandings. But everybody must beaware that there have been utterances by responsible PrimeMinisters, not of the Dominion, but of the Provinces, which havegiven rise to misgivings as if to criticise the Government in power issomething like sedition. But the moment you accept theamendment I have placed before you, you give statutory recognition

to the existence of the Opposition, this misconception that has


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grownin the country, that if you criticise the Government it

means you want to create disaffection, will disappear.

There is second reason why I want that this provision should find aplace in our Constitution and it is that at the very outset ofparliamentary democracy, we must not create a condition in thecountry wherein one-party Government becomes permanent and aparty thinks that it has come into power and it is has to remain inpower for all time to come. It is necessary to create a psychologicalchange. I can not point to so many utterance which have made thepublic at large feel that the Party and the State are convertibleterms, that if you criticise the Party you necessarily try to weakenthe foundations of the State. In England that is why the Oppositionis called His Majesty's Opposition. Those words are enough to

create the impression in the minds of the electorate that the Leaderof the Opposition has also a role to play and function to dischargeand that therefore when he does anything in his capacity as Leaderof the Opposition he is doing nothing but his duty. The sameimpression I want to create here by having this amendmentinserted. IF this is inserted the public at large and everybody willfeel that the Constitution itself recognises the existence of theLeader of the Opposition and that when he criticises or attacks theGovernment and carries on agitation in the countryside and rouses

public opinion against the party's misdeeds, really he doing a dutyassigned to him by the Constitution. This is my second reason.

My third reason, as I said, is that if there is no effective Oppositionwe will have dull chambers Opposition we will have dull Chamber;not only dull Chamber but, as is said in some papers, thelegislature becomes 'docile' meek and submissive'. Does that notcreate a bad impression in the public mind that the legislature is amere sham, that is does not do any work, that members get up tocriticise simply for the sake of appearing in print, that theamendments are all withdrawn and that whatever comes from theTreasury Benches is accepted without the change of a comma or afull-stop. It is not an interesting, but a dull Chamber. The result isthat the public loses interest in all parliamentary work. Democracycannot function unless the public evinces interest therein. What isthe way to create interest in the public? How is it possible to makethe public feel that its destiny is being moulded in the legislature by

means of frank and open criticism and after due deliberation?Who is to create that interest? I find that in all the legislatures in

the Provinces there is no Opposition has been dwindling. In ourown Dominion legislature there is no Opposition whatsoever andthe result has been only tall talk somewhere at some places bycertain individuals.

There has been no well-informed criticism.Neither has there been any effective Opposition.

Therefore the third reasons which I placed before you forconsideration is that if you want to avoid becoming a deadChamber, if you want to avoid loss of all interest by the public in

parliamentary activities, and ultimately in democracy itself, it is


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necessary to have an institution like the one which is there in othercountries.

At every stage you say you prefer British Institutions. You say atevery stage that everything that is good is to be found in Britishinstitutions, in party Government. If that is so,-and I feel there is agreat deal of trust in that-then it is necessary democracy so that itmay not fail in India. The moment the British people felt that theymust pay the Leader of the Opposition so as to keep the Oppositiongoing, they accepted this principle is South Africa. For all thesereasons I feel that this amendment deserves considerations at yourhands.

I have heard of two criticisms: one is, where is the Opposition party-

where is the Leader of the Opposition, whom you are going to pay?My submission is this: you have to create conditions. Thedangerous part in India is that we have begun this democracy byhaving oneparty and one party alone and that party is determinedto keep other out. There is the case in the United Provinces where aman of the stature of Acharya Narendra Deo was not allowed tocome in. Therefore I say it is your duty as Constitution-makingBody to create conditions in which a party may grow into anOpposition. It you say 'let the party grow and then I will fix the

salary," it means that you do not want an Opposition. You have tocreate conditions so that the public may feel that the Oppositionhas also a duty and is of service to the country. Unless that feelingis created, you cannot have a proper Opposition.

The second criticism is that, what will happen if there is more thanone party, what will happen if there are three parties? Whom areyou going to pay? It is a curious criticism. Everybody knows that inparliamentary practice the biggest party constitutes the Opposition.All other parties, if there are more than two, are mere parties. The

privilege of the Opposition goes to the largest party after the partyoccupying the Treasury Benches which is the biggest party.Therefore these two criticisms are absolutely unfounded.

As a said before, this amendment is the soul of all theseamendments. But there are two other parts which I will take upnow. Article 86 says that the members of Parliament shall receivesuch salary as may be determined by Parliament from time to time.It goes on to say that until other provisions are made, they will be

paid according to the rules previously prevailing. Sir, you areframing a Constitution. Why encumber it with provisions like this?It is not possible for Parliament, the moment it meets, to pass aSalary Bill? When in 1936 responsible legislatures came intoexistence was there any difficulty in enacting an Act for thatpurpose? When the Constituent Assembly came into existence wasit difficult to decide what will by our remuneration?

The second thing is that in many new Constitutions the pay is laiddown in the Constitution itself. It is not desirable to leave it to theParliament to determine the pay from time to time, but if you are


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doing this, then you must fix the proportion between the member'ssalary and the pay of the Ministers. Why? For two reasons. In Indiaunfortunately the gap between the classes is very wide. On the oneside you fined multi-millionaires, on the other side you fined the

poorest of the poor. The same disparity should not be there betweenthe pay of the Members of the legislature and of the Ministers. I donot want that there should be a great disparity between the pay ofthe Members of the legislatures and of the Ministers. I do not wantthat there should be a great disparity between that salary of aMembers of Parliament and the Ministers, so that the members ofParliament may feel that he will always have to please thehonourable Ministers to get some more remuneration. There mustbe some relation between the pay of the members of Parliament andthe Ministers' salary for another reasons. Once you have

determined the pay of the Members of Parliament in relation to thepay of the Ministers, naturally you have to be careful what salaryyou fix for the Ministers so that the burden on the exchequer maynot be very heavy. Therefore this serves two purpose. Firstly, itserves as a check on the great disparity between the salaries of theMembers of Parliament and of the Ministers. No doubt it is true thatthe Minister work for twelve months. Even if you take that intoconsideration, the proportion comes to the same proportion that Ihave indicated. It is this proportion which is to be found in

Australia and New Zealand. Therefore, what I want is this, thatthere must be some relation between the pay of the Members ofParliament and Ministers so that no inferiority complex maydevelop. The first two amendments are of very great significance,but you may or may not accept them. But the third raises a point ofvital importance. I hope that the House will, irrespective of partydecisions, take into consideration the reasons which I have

placed before the House and consider hoe far it is desirable that

they should recognise the principle of party opposition. It is veryeasy to say that we accept the principle, and say that when theParliament comes into being, it will fix the salaries of members ofParliament. When you have such a voluminous Constitutionrunning into hundreds of pages and sections, when you are notleaving even minor things to be determined afterwards, why leavesuch a provision to be determined afterwards, a provision which isreally of vital importance, in the interests of democracy and in theinterests of the proper functioning of party governments in thiscountry? In India during the last several centuries we had

despotism. We are just beginning with democracy. It is necessarythat we must create conditions in which democracy may not prove afailure. We must take steps to ensure its success and one of theessential things is that we must ensure that when the newlegislatures meet after the enactment of the present Constitutionthere is a full-fledged and vigorous opposition to make partygovernments a success.

(Amendment No. 1635 was not moved.)


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The Honourable Shri K. Santhanam (Madras: General): Sir, I beg tomove:

"That in article 86, for the words "Legislature of the Dominion ofIndia' the words 'Constituent Assembly' be substituted."

Sir, the present words are inappropriate. There is no body existingtoday which may be called the Legislature of the Dominion of India.Under the adapted Government of India Act as well as under theParliament Act, the Constituent Assembly functions as thelegislature of the Dominion of India for certain purposes. The onlybody that exits today is the Constituent Assembly, and the newMembers of the Parliament of India would prefer to derive theirsuccession from the Constituent Assembly rather than from the

nonexisting Legislature of the Dominion of India. At one time therewas some difference between the allowances between the membersof the Constituent Assembly sitting as a Constitution-making bodyand the members of the Constituent Assembly in the legislativesection, but now all have been brought on the same scale. Thereforethere is no practical difficulty whatsoever. I commend theamendment for the acceptance of the House.

Shri L. Krishnaswami Bharathi (Madras: General): Sir, in Mr.

Santhanam's amendment the wording should be "ConstituentAssembly of India" and not merely the "Constituent Assembly".

The Honourable Shri K. Santhanam: I have no objection.

Mr. President: Amendment No. 1637 is the same as 1636. Allamendment have been moved, and now the amendment and theoriginal proposition are open for discussion.

Shri T.T. Krishnamachari (Madras: General): Mr. President, Sir, the

object of my standing before the House is to say a few words on theamendment of Mr. Lari. Mr. Lari's complaint about the omission ofany mention of the salaries of members in the constitution and alsohis suggestion that the Leader of the Opposition should be paid asalary are suggestion which are intrinsically worth considering, butI do not think it is necessary that we should enumerate in theConstitution details such as these so long as there is no embargo inthe Constitution on the payment of a salary to the Leader of theOpposition, and salaries to members of Parliament. At the sametime I am afraid Mr. Lari used the occasion for riding a hobby horseby projecting into the discussion those matters which perhapsconcern him immediately, viz., those relating to the UnitedProvinces politics. I wonder whether in considering the DraftConstitution it is possible for us to devise ways and means ofcreating an opposition such as he wants by, putting the provision inthe Constitution which Mr. Lari desires. After all we are not placingany embargo on any opposition party coming into power. I amafraid, Sir, that for a long time I have been hearing, almost from1937, ever since the 1935 Act came into operation in the provinces,

of the cry made by people who unfortunately are without anychance


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of coming into office or power that there is no opposition, that theCongress Party is doing is best to see that an opposition does notarise, and that where an opposition exists it does not function. Infact I wonder how Congress Party or any other party that might

take its place in the future can create an opposition as such. Howcan an opposition be created by paying salaries to the members ofthe opposition party or the Leader of the Opposition? Are you goingto insert in the Constitution a Provision by means of which we setapart a particular amount in the budget for the purpose of creatingan opposition? I would like members here who be not satisfied withthe type of government obtaining in this country to tell us exactlywhat they want. Do they want that in the Central budget a sumshould be set apart in order to create an Opposition? Sir, a cry like,this in a House which is functioning in a business-like manner is

something of a diversion and my honourable Friend Mr. Lari hasprovided such a diversion so that the proceeding of the House neednot be considered very dull by people who read the papers. So farMr. Lari has done a service by his speech but I think somebody hasto say that this is hardly the time and the place to make complaintsthe existence of which cannot be helped by the party who is inpower. Nor is it the place to provide anything statutorily because Ido not think that an Opposition can be created? Will a Leader of theOpposition who is paid a salary be able to organise a party? Even

granting that the Leader of the Opposition is paid the same salary,allowances and emoluments as the Prime Minister of India, doesthat mean that he would be able to create a party? I think the veryeloquent arguments put forward by Mr. Lari are likely to misleadthe House into believing that there is something lacking in the stateof affairs at present, conditions which are not existing by means ofaccepting Mr. Lari's amendment, an amendment which ordinarilycould have no place in the Constitution.

Reference was made by the honourable Member to the Oppositionin the House of Commons, and in regard to British practice. Yes, Ihave followed the progress of payment of salaries to Members in theBritish Parliament and also the creation of a status to the Leader ofthe Opposition and the payment of the salary to the Leader of theOpposition. All these have developed over several decades. I do notthink there is anything to prevent the Indian Parliament of thefuture to provide for a salary for the Leader of the Opposition if it sochooses and if it is thought desirable and wise. I do not see theneed to put in a provision like this in the Constitution here in

respect of an article which merely is a permissive article; it merelygives permission for Parliament to legislate in future in regard tosalaries and allowances of members and, between the time that theParliament does legislate and the time that it meets, to allow thestatus quo to continue.

He also objected to the provision for status quo to be prolonged. I donot see what sense there is in objecting to a thing which is veryreasonable. After all the Parliament of the future will have such a

lot of work to do in the initial months of its existence and the


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payment of salaries to members or allowances to members will be,in comparison to the other important matters that it will have toface, comparatively unimportance and in fact, I would rather thatthe House had enable Mr. Ananthasayanam Ayyangar to moved his

amendment which gives power to the President enacts a legislation,which would have made the status quo, the position as it is in theGovernment of India Act as adapted to remain in operation. Sir, Ithink the charge that Mr. Lari made that a provision forcontinuance of the status quo is wrong is absolutely baseless,because it would not be possible for Parliament of the future toattend to all and sundry and the hundred and one mattersimmediately and it might probably take two or three years before itmight settle down to do something on

the lines that Mr. Lari wants. I have no doubt the future Parliamentand those who are going to be in charge the creation of the destiniesof this country would bear in mind the suggestion of Mr. Lari to paya salary to the Leader of the Opposition, if that would encourage thecreation of an Opposition, of a healthy Opposition Party. By allmeans let it, but to put a provision of the nature that he hassuggested in the Constitution, I think is wrong, and the argumentshe has seduced in favour of his amendment are far beside the pointand completely beyond the knowledge and concern of this

particular House. Sir, I oppose Mr. Lari's amendment and supportthe amendment moved by Mr. Santhanam and the article as itwould be amended by that amendment.

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, I opposethe amendment of Mr. Lari, not that I am against having a healthyOpposition. The Article, as it stands, is sufficiently wide to make aprovision and it makes a provision for giving salaries to members ofParliament and also when providing for a salary for members of theParliament, it does not say it must be uniform. It may take into noteif there is a healthy Opposition and there is a Leader of theOpposition, and make a provision for giving him a special salary ora salary in a higher degree than the salary that is given the othermembers. As I said the provision is wide, and there is no similarprovision in any Act, in any Constitution in any part of the worldsaying that you must make provision for the Leader of theOpposition in the body of the Constitution itself. Rules andregulations have to be made by Parliament and there is nothing toprevent Parliament from making a law giving a salary to the Leader

of the Opposition. Now, let us read the amendment that has beentabled by Mr. Lari. It says:"Provided that salary payable to membersof the Parliament shall not be less than one-fourth or more thanone-third payable to a Cabinet Minister". His Assessment of theworth of his members is that a Cabinet Minister is equal to three orfour members of the House and it will be very wholesome incentivein the hands of the members of the House, for constantly agitatingfor increasing their allowances, so that the Ministers' allowancesalso may go on increasing. If the member's allowance must not be

less than one-fourth and if it is Rs. 500, the Minister's salary must


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be four times that is, Rs. 2000 and if they claim Rs. 1000, theMinister's salary must be Rs. 4000 and so on. I do not see why itought to be not less than one-fourth or more than one third; itbecomes to rigid; you can say one-fourth or one-third or one-half,

but there is a no meaning in fixing a proportion here, and I do notsee three ought to be a definite proportion between a member'ssalary and the Minister's salary.

The amendment further says: " And provided further that theLeader of the Opposition shall be entitled to get salary payable tominister without Cabinet rank." If Government recommend that wemay abolish ministers with cabinet rank, then the amendment ofMr. Lari goes to the wall. The moment our minister are madeministers without cabinet rank, than there is absolutely no

provision for what Mr. Lari suggests, in so far as the wording inconcerned. As regards the substance, since the 15th August 1947the Constituent assembly has been functioning as a Legislature tothis day for nearly two years, but is there a healthy Opposition? Ihave noticed some keen opposition was there when a debates tookplace with respect to Hyderabad. On no other occasion was there anOpposition at all. Is there a policy, is there a programme? if therewas an Opposition on communal matters, do we want to perpetuatethat? If there is any section strongly opposed to Government which

want to make this country an absolutely Socialist State here andnow, I can understand it. You have no policy or programme. Areyou therefore to go on as the Irishman said when he was ship-wrecked? He landed on an island and the first question he put was" Is there aGovernment"? And somebody said that there was and hepromptly said that he was in the Opposition. Mr. Lari wants tocreate an Opposition. May I ask him whether there is an Oppositionand what kind of Opposition. Perhaps they are wanting communalfactions. Is there a communal party which will go as an Opposition?

Are we to pander to communal bickerings and say to those whocreate them " You can carry on in the manner in which you havebeen carrying on, vertically, horizontally and diametrically andthem I will pay in addition a salary"? I am really surprised to seethis day the very protagonist of this healthy Opposition. What istheir policy or programme? are they interested in the welfare of thecountry? Are their action calculated to improve the welfare of thecountry much better than what the Congress Party has stated in itsmanifesto? I therefore think that to say in the Constitution itselfthat there must be an opposition is not necessary. You may leave

this matter to the Parliament. If there is a healthy opposition andfor want of separate provision for his maintenance the Leader of theopposition is not able to devote all the time and attention that isnecessary in the interests of public welfare and democracy, in theinterests of parliamentary administration and in the interest ofbringing to the notice of the public the defects in theadministration, then there is time enough to make such a provision.The article as it does not prevent any such provision being made.But, from now on just to dangle an opportunity or temptation in the

way of a number of members is not proper. Four or five members


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may join and say, " we will have an opposition and an oppositionleader, let him be paid a salary of Rs. 4,000 and let us divide itamong ourselves". If a healthy opposition grows, certainly, there willbe provision made. So long as there is no healthy opposition, a

salary ought not to be placed on the Statute Book by way oftemptation. I oppose Mr. Lari's amendment both in its from asimpracticable and in substance, because there is no opposition andit not intended to create an opposition willy-nilly.

My honourable Friend Mr. T.T. Krishnamachari said that heapproved of may amendment. I only wanted to say that during thetransitional period, the question of salary may be modified by thePresident as there is a similar provision in the Government of Indiaact giving power to the Governor-General to modify the rules

regarding the allowances from time to time until provision is madeby Parliament. Mr. Santhanam think that it is not necessary tocloth the President with such a power. I also agree that thePresident ought not to override the legislature. But, I think so far asallowances are concerned, nothing prevents Parliament frombringing an enactment to remedy any defect and we need not clothethe President with any extraordinary powers of this kind. I thereforeadvisedly did not move the amendment.

Mr. Tajamul Husain (Bihar: Muslim): Mr. President, article 86 saysthat Members shall get salaries fixed by Parliament and that tillParliament meets and fixes the salary, They should be paid theamount as members of the Dominion Legislature or the ConstituentAssembly are paid at present. An amendment had been moved bymy honourable Friend Mr. Lari to the effect (i) that members shouldget their salaries which should be one-fourth of what a Minister ofCabinet rank would get, that is, he had fixed that whatever salary isfixed for a Cabinet Minister, one-fourth of that should be the salaryof each individual member, and (ii) that there should be a Leader ofthe Opposition and that Leader of the Opposition should get thesame salary as a Minister of State, that is not of Cabinet rank. Ihave very carefully listened to the speeches of my honourableFriend Mr. Lari and of the two preceding speakers. The argument ofMr. appears to be very sound that a salary has to be fixed. Therehas to be a leader of the Opposition. But, there will be nocommunal groups in the future, because, there is not going to beany reservation ofseat and even if there is going to be reservation ofseats, there are not going to be separate electorates. Everybody feels

that there should be a Leader of the Opposition.

On the other hand, there is a flaw in the argument of Mr. Lari and itis this. You will find that wherever there is a Parliament ondemocratic lines, there are leaders of the opposition and there aremembers of Parliament and all of them get their salaries. But, theirsalaries were never fixed by the Constitution. The salary of theleader of the opposition and of the members in every country hasbeen fixed by an act of Parliament. Whether it is the Dominion of

South Africa, Canada, Australia or New Zealand or any otherDominion, you will find that this is the case. While this is the case


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everywhere, why should we create a new thing and include this inour C

arundhati roy slp

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