Tuesday, January 13, 2009

Two cases in Calcutta

A tale of two cases and two options…

This column is being written immediately on my return from Delhi, where I spent the time between the last column and this. My stay in Delhi was to enable my presence at the inaugural conference of the Law and Social Sciences Research Network held between the 8th and the 11th at the Jawaharlal Nehru University.

While present at the conference, the participants were made aware of a rather interesting story. This true story involves the case of one Hans Dembowski, who subsequent to his research and the award of a PhD degree published a book, via the Oxford University Press titled Taking the State to Court – Public Interest Litigation and the Public Sphere in Metropolitan India. This book was concerned with the issue of governance in metropolitan India, and sought to elaborate the manner in which the Indian courts are playing a vital role in making public institutions more accountable.

Unfortunately for him however, two lawyers of Calcutta High Court, one of them being a government pleader, initiated a contempt petition before the Calcutta High court stating that the book contains "scurrilous derogatory and scandalous remarks against this Hon'ble Court" and has "scandalized and/or tended to lower the Authority of this court". Acting on this petition, the Calcutta High Court in an interim order ensured that the national and international circulation of the book was stopped. Dembowski hangs in limbo ever since.

Closer home, just prior to my departure from Goa, I was made aware of another petition that had been accepted and acted upon by the High Court of Calcutta. This one is a petition filed by Fomento Industries against Seby Rodrigues, where Fomento, represented by Sujay Gupta, former editor of Gomantak Times and now in the employ of Fomento claimed it was being defamed by Seby. Among the other prayers to the Court, Fomento made to the Calcutta High Court was a claim of Rs. 500 crores from Seby for the damages caused by the blog http://mandgoa.blogspot.com/ that he manages.

The admission of both these petitions by the Calcutta High Court is rather disturbing, since it really amounts to participation in a suffocation of the rights of debate and discussion. In the first case what the interim order represents is a suffocation of the right to academic debate. In the second, in terms framed by Pravin Sabnis, what we have is in fact an assault on the rights of a journalist, a person who documents social processes.

The question that emerges in both cases is, is there something desperately wrong with India’s judicial processes and institutions? Does one suffocate the circulation of an eminently academic work that raises questions and honestly seeks answers and promotes debate? Should the Calcutta High Court have taken up an issue that could, and perhaps should have, ideally been dealt with in Goa? Initiated a process without the participation of the defendant?

As a socio-legal scholar other questions also flood my mind. What is the relationship that a superior court of this country ought to have with procedure? Is it procedure alone that a Court like the High Court of Calcutta must bear in mind, or must its imagination also be animated by some knowledge of, and a respect for the workings of society?

Attending the public meeting in response to the defamation suit filed by Fomento, one got a sense of the workings of this society. A society that is in fact not working. A society that is simply not in communication within itself.

Did Fomento in fact initiate a dialogue with Seby prior to filing this suit in the High Court of Calcutta? Was this dialogue attested to by some form of written communication? Ideally, Fomento ought to have; in such a case displaying its commitment to an open society, and arming itself against the now widely prevalent accusations that it is seeking to harass an activist who is raising valid questions about the nature of mining in Goa.

For all the challenges that Goa has been dealing with, every challenge is an opportunity for dialogue. Unfortunately it seems that at almost every turn, this opportunity is being rejected in favour of the legal; a route that is really in confrontation with the social.

(Published in the Gomantak Times 14 Jan 2009)


Anonymous said...

hey jason,

good one.
was discussing the same with a bombay HC laywer. unfortunately, debate and discussion is a dead tool today.
for some strange reason, i can't seem to open the petition and sign it.


Varun G said...

Hey I really liked your article.It's an interesting topic. I have also tried to write same thing on Indian Republic Day, 26th Jan hope you will approve it and your comment will be really appreciated.
I would be also glad to exchange link with your blog.