(This story was originally published on 8 December 2020 and is being republished from The Quint’s archives in the backdrop of the Supreme Court’s scheduled verdict on Friday, 18 December, in the contempt of court proceedings against Kunal Kamra and Rachita Taneja.)
In a slightly confusing interview to The Times of India, Attorney General KK Venugopal has said that social media is a “very essential outlet for common people and the intellegentsia to express their views honestly in a democracy” and that he is “fed up” of the constant requests asking for his approval for contempt petitions.
And yet, he also says that if the Supreme Court takes action against people on social media who are ‘daring’ them to do so, based on the consent given by him, “it could send a sobering message to all not to abuse the right to free speech on social media platforms.”
“I am fed up with the number of requests seeking my consent for initiation of contempt for alleged contemptuous social media posts. There are two kinds of posts, one which is severely critical and the other is outrageously abusive... I have given consent for filing contempt petitions against those who have used extremely intemperate language and have published obnoxious cartoons. I have declined consent in most cases, for I believe that freedom of speech is essential in a democracy.”Attorney General KK Venugopal to The Times of India
The reason for these remarks is fairly clear: the outcry and criticism that the AG has faced for his decision to grant consent to some over-eager law students for contempt petitions against Sanitary Panels cartoonist Rachita Taneja, and, a few weeks ago, against comedian Kunal Kamra, for their posts about the Supreme Court of India.
The comics and jokes by the two of them were not delicate: they called out the Supreme Court for its alacrity in granting bail to Arnab Goswami while failing to do so for other journalists in no uncertain terms.
From Kamra’s image of the apex court building tinted saffron with an RSS flag on it, to Taneja’s drawing of the court building titled ‘Sanghi Court of India’, no punches were pulled, and no illusions left about their ideas about the court’s proclivities.
The Attorney General’s problem with posts like this is that they are “extreme cases where there is a deliberate attempt to denigrate the SC or its judges with derogatory posts” and dare the court to take action against them.
Why Endorse Contempt Here?
The thing is that, denigration of the court, or derogatory posts about the court, do not automatically translate into a need for contempt action. ‘Intemperate language’ and ‘obnoxious cartoons’ are not in themselves grounds to overturn the protections on freedom of speech that the Constitution grants us.
If that were the case, you might as well just give up on the idea of freedom of speech that Venugopal claims to hold so dear. It is telling, however, these are the terms used by the AG to justify his actions in the interview, rather than talking about whether such social media posts, cartoons or jokes actually undermine the court’s authority.
That undermining of authority is what the power of criminal contempt is all about – the scandalising of the court that forms part of the definition of criminal contempt.
In the letters granting consent to those law students who were so affected by the cartoonist and comedian’s posts, Venugopal ticks the boxes by saying that those posts do undermine public confidence in the Supreme Court (even going so far as to claim that the posts are calculated to do that).
Yet, when offering his explanation in the interview with TOI, he focuses instead on the tone and tenor of those posts, rather than the legal standard itself.
And that is of course why the AG’s comments on how he thinks that “if freedom of speech is curtailed, it will be a great disservice to democracy”, and that there should be no legislative curbs on social media platforms, ring rather hollow.
Criminal Contempt’s Chilling & Counter-Productive Effects
Censorship doesn’t just come from government orders and rules, it is as much a result of the atmosphere for free speech in a society.
This is indeed why criminal contempt is such a problematic concept – and in particular, making ‘scandalising the court’ a crime: a term so nebulous it could mean anything, based on which side of the bed a judge wakes up.
The ability of retaining such a power to have a chilling effect on free speech is precisely why it has been abolished by pretty much every liberal democracy worth its salt, including the United Kingdom – which gave us the concept in the first place.
The UK Law Commission report from 2012 which led to the removal of ‘scandalising’ the court as a ground for criminal contempt the next year makes several points on this that perhaps ring even truer today than they did eight years ago. These include:
- The law in the UK (as in India) does not generally regard ‘vulgar abuse’ as important enough to punish, and offers other means of dealing with false accusations, such as actions for libel (civil/criminal defamation here in India).
- If there is some criticism which is “wholly unjustified”, restraining it can have a chilling effect, discouraging justified criticisms.
- Most judges who spoke to them said that the great deal of abusive material attacking judges does little harm as most of it is “too extreme to be believed”. By suppressing such criticisms, one actually does “greater harm than the material itself.”
- The offence doesn’t actually increase public respect for judges – instead the fact that there exists a criminal offence for insulting judges which is enforced by the judges themselves, “promotes a perception that it is a self-serving exercise in which the judges protect their own.”
- By making people stay silent and not express their views about the court, one is likely to create more ill-feeling about it, “not least the suspicion that judges are engaged in a cover-up and unfairly suppressing freedom of expression.”
A Court Threatened by Jokes?
That the Attorney General for India thinks that a cartoonist and a comedian should face criminal legal action for their rude social media posts is just staggering, in how this ignores the context behind comedy and dissent, and how such action would only make the court look weaker.
If the Supreme Court’s authority – nay its very existence (as the petition against Taneja that’s been filed further to the AG’s consent actually claims) – is threatened by a bunch of stick figures, then the battle for its reputation has already been lost. No amount of contempt convictions is going to fix that.
Kamra and Taneja may have imputed motives to the court, but as the UK Law Commission said, such kind of comments are too extreme to be believed by the general public, and should therefore be ignored. Those who do believe such comments to be true, will only see reinforcement of their belief if the court cracks down on such comments, defeating the purpose of taking contempt action here in the first place.
It is fallacious to equate this with allowing hate speech or any other form of genuinely illegal speech, thanks to the fact that unlike other laws, the judges are judges in their own cause when it comes to contempt.
So at the end of the day, all the AG’s actions do are suppress free speech, without actually protecting the authority of the Supreme Court.
The attempts to say that this is only in extreme cases of intemperate language or obnoxious posts holds little water, as we saw with the conviction of Prashant Bhushan and because the next AG may have an even lower threshold for approving contempt.
In the meanwhile, the threat of contempt petitions will hang over every comedian and comic (let alone legal experts) and force them to self-censor, which runs directly contrary to Venugopal’s claims to TOI that people “have the right to express their dissatisfaction at the working of the government or the judiciary.”
No amount of post-facto interviews are going to change that.
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