FREEDOM OF SPEECH VIS-À-VIS CONTEMPT OF COURT [Part 2/2]
‘Democracy is fundamentally founded on free speech and open discourse, which is the only correction of government intervention in a democratic environment.’
-Justice P.N. Bhagwati in Maneka Gandhi v. Union of India
The Infamous Case of Prashant Bhushan
The latest contempt of the court case in India is Prashant Bhushan’s contempt case where the Hon’ble Supreme Court initiated suo-moto contempt proceedings against an Advocate on Record (AOR) Shri Prashant Bhushan, regarding his tweets about his interview with the magazine Tehelka in 2009, in which he challenged the credibility and integrity of some previous and current Chief Justices of India. However, Mr. Bhushan immediately retracted his comment on his tweet when the contempt proceedings were launched. He also apologised for this tweet and explained that he did not intend to disrespect the office of Chief Justice of India. Mr. Bhushan, however, vehemently declined to apologize both for his interview with Tehelka magazine in 2009 and for his other tweets.
In his reaction to the contempt proceedings, Mr. Bhushan said that he didn’t intend to act in contempt, neither through the interview nor through the tweets. He gave only constructive feedback and that it would not be fair and justified to apologize whether conditional or unconditional. The suo moto proceedings against Mr. Prashant Bhushan were initiated on 21 July 2020 and a constitutional bench found him guilty of the offence of contempt and was asked to pay a fine of Re.1 or face 3 months imprisonment. This degree of efficiency can only be hoped for in other matters too.
The petition brought against him and his tweets was considered on account of the fact that they 'scandalizing' in nature and inspired a 'motion of no confidence.' The esteemed court recognized the condition and instituted and found him guilty of contempt. ' It has been very clear that as a citizen of that country Mr. Bhushan considered himself to be operating under the basic right granted by Article 19(1)(a) of the Constitution, but the Office of the Chief Justice and the other members of the Judicial Authority have found some of the terms in his tweets "derogatory" and ‘scandalous.’ Mr Bhushan was entitled not only to openly express his opinions and views but also to be within the boundaries of fair restraints and most importantly, to respect the office of the Chief Justice of India.
Infamous cases of contempt proceedings against Comedians and Cartoonists-A laughing matter?
In the previous month, the Attorney General KK Venugopal consented for against comedian Kunal Kamra for his 18 November tweet, which he believed to be ‘grossly obscene and odious,’ which appeared to reduce the Supreme Court's authority.
The top law officer had previously allowed for a contempt trial because of his earlier tweets which criticized the Supreme Court and said that they were "bad taste" and it was time to understand that attacking the top court would be punished in blatant fashion. Under Section 15 of the Contempt of Courts Act, 1971, the consent of either the Attorney General or the Solicitor General is required to initiate contempt procedure against an individual.
Equipped with the prior permission of the General Attorney, a request to pursue criminal contempt against Mr Kamra for his alleged ‘scandalous tweets’ against the Supreme Court was brought before the Supreme Court on 13 November.
KK Venugopal, Attorney General, has given consent in successive tweets released soon after the apex-court awarded bail to Republic TV editor-in-chief Arnab Goswami, for an initiation of contempt against the artist Rachita Taneja. A law student Aditya Kashyap had asked for a contempt petition against her under the Rules to control proceedings in respect of contempt of the Supreme Court of India. The three tweets of Taneja, webcomic designer of Sanitary Panels, were analysed by Venugopal and found to be outrageous to SC.
The first question that this case raises here is the role played by comics in society. French philosopher Henry Bergson makes two significant points which are important in his seminal book Laughter: An Essay on the Nature of Comic, published in 1900.
One argues that laughing is important because society becomes too inelastic in its absence. Laughing removes the rigidity, pomp and vanity of the mind and culture. Today, in India everyone knows that such laughter is necessary. This element of avoiding the inelasticity of society by laughing is a legitimate statement on the common human condition for all societies. Kamra and Taneja are allies from this viewpoint. Humour occurs when the antics of the comic and their audience have a cultural alignment, when statements and movements are in a familiar symbolic world. The sense of the joke can only be known when there is a resonance. The second tweet depicted the SC as “Sanghi Court of India, the Attorney General found this to be a gross insinuation against the top court of the country to the effect that “Supreme Court has ceased to be an impartial organ of the state” He said, “The tweet is calculated to undermine public confidence in the independence and impartiality of the Supreme Court of India. The third tweet depicted made a reference was made to the Ayodha title suit judgment delivered by Supreme Court in November last year with the insinuation that this had a link to a particular party.
The AG said that this was an apparent effort to turn the public's minds against India's former Chief Justice and the whole of the judiciary. On 12 November, AG Venugopal consented to initiate a contempt procedure against standup comic Kunal Kamra. It was planned to intentionally shake people's trust in the Supreme court of the country and to decrease the authority of this institution. Kamra lampooned the Supreme Court with a series of tweets as India's supreme "joke," including a tweet showing the Supreme Court in saffron and the Indian Tricolour being replaced with the flag of a political party. These tweets were also in the context of Goswami case. However, the matter somewhat settled down when Kamra had apparently ‘apologized’. These matters are in sub-judice.
Contempt of Court in UK
In 1968, UK’s former Master of the Rolls, Lord Denning, had to say this about the rule of contempt: “Let me say at once that we shall never use this competence as a way to preserve our integrity ... nor will we use it to silence those who speak against ourselves. We're not scared or resentful of criticism. Something is far more important here.”
It is nothing short of freedom of speech. In 1987, after the Spy catcher’s decision, when the Daily Mirror called Britain's Law Lords when Daily Mail's addressed the British's Law Lords as 'You old fools,' or even after the Brexit ruling when Daily Mail addressed the judges as 'enemies of people', the judges had consciously ignored the headlines and did not consider these to amount to contempt. It held that it is the right of any man or woman to make a rational statement, even open-minded comment, on matters of public interest ... We must rely on our own actions as a means of self-reproofing." Indeed, it's worth noting Lord Templeton's comments on the Spycatcher headline: "I can't deny I'm old, it's the reality. If I'm a fool or not is someone else's interpretation... the forces of disdain need not be invoked.
Some of our own judges have shown similar expertise. In his 2008 lecture, Justice Markandey Katju said "When someone calls me a fool, be that person in or out of the court, I'm not taking action because it doesn't deter me from working and I just ignore the comment or say that everyone has a right to his opinion. It's just because it doesn't stop me working. Words don't split bones, after all." More specifically, Justice Katju clearly demonstrated where and when contempt should apply. "The test of deciding whether or not an act is a contempt for a court is this: is it impossible or exceedingly difficult for the working of judges? If not, it's not contempt towards the court even if it's harsh criticism ... the only circumstance I will have to do is if I couldn't behave as a judge ... after all, I have to work if I want to justify my salary."
Therefore, freedom of expression v. contempt of the court is never a concern, as the law comes with some fair limitations and contempt is one of them. It may be questioned that the limitations referred to in Article 19, clauses 2 to 6, are so far-reaching as to limit clause 1, but they have only been inserted to preserve the balance of the Constitutional Machinery, because too much control can at times prove to be harmful. Judges must not take themselves too seriously while justice is necessary. Even if their amour propre is insulted, it does not mean that the institution was challenged or that justice brought into disrepute. Judges don't incarnate it, judges deliver justice. They can never forget that the court is the ultimate, not that it's infallible. They can be criticized or satirized as they lapse and it mustn't be polite or even honest.
 2020 SCC OnLine SC 588.  In Re Prashant Bhushan & Anr, SCM (CRL.) No. 000001 - / 2020.  Section 15, Contempt of Courts Act, 1971.  deSouza, P. and deSouza, P. (2020) Contempt cases: Prosecuting comedians and cartoonists is no laughing matter, Scroll.in. Available at: https://scroll.in/article/979891/contempt-cases-prosecuting-comedians-and-cartoonists-is-no-laughing-matter (Accessed: 2 December 2020).  Attorney General Venugopal Would Be Shocked at US Comedians Making Fun of Judges (2020). Available at: https://thewire.in/rights/venugopal-comedian-kunal-kamra-contempt-judges (Accessed: 2 December 2020).  Top Law Officer Allows Contempt Proceedings Against Comedian Kunal Kamra (2020). Available at: https://www.ndtv.com/india-news/supreme-court-attorney-general-allows-contempt-proceedings-against-comedian-kunal-kamra-2328116 (Accessed: 2 December 2020).  AG okays yet another contempt case against Kunal Kamra for his middle finger tweet against the CJI (2020). Available at: https://www.theleaflet.in/ag-okays-yet-another-contempt-case-against-kunal-kamra-for-his-tweet-against-the-cji/# (Accessed: 2 December 2020).  Karan Thapar ‘Contempt of court’: A relook may be needed (2020). Available at: https://www.deccanchronicle.com/opinion/columnists/261120/karan-thapar-contempt-of-court-a-relook-may-be-needed.html (Accessed: 2 December 2020).
Title Image Source: Civils Daily
This article has been written by Gyanda Kakar. Gyanda is a second year law student at Gujarat National Law University.