Law

SC Revives Free Speech Debate After Issuing Notices to Kamra, Taneja for 'Contemptuous' Tweets

The Attorney General’s consent to initiate contempt of court proceedings against Kamra and Taneja appears to have left the bench with no option, but to issue notice, even though it is based on the absence of any ingredients of “criminal contempt”.

A three-judge bench of the Supreme Court comprising Justices Ashok Bhushan, R. Subhash Reddy and M.R.Shah, on Friday, issued notices to stand-up comedian Kunal Kamra and cartoonist Rachita Taneja for their tweets on the apex court, which according to the petitioners, constitute contempt of court.   The bench has asked Kamra and Taneja to respond to the notices within six weeks, while dispensing with their presence during the hearings for the time being.

The bench’s notices to Kamra and Taneja followed Venugopal’s consent to initiate contempt proceedings against them, as requested by some petitioners.

In his recent interview to NDTV, Venugopal said that freedom of speech on social media should not be curbed and any move to do so may invite litigation, adding that it is unbecoming of a “healthy democracy”.  Venugopal, however, justified the contempt cases initiated by the Supreme Court saying it does so only in the rarest of rare cases, that is, only when lines are crossed.

In his interview to the Times of India, Venugopal said he was fed up with the number of requests seeking his consent for initiation of contempt for alleged contemptuous social media posts. “I walk a tightrope and give consent only in extreme cases where there is a deliberate attempt to denigrate the SC or its judges with derogatory posts.  This is a new phenomenon on social media – to dare and attempt to invite contempt proceedings through such posts.  They are daring the SC to take action.  If the SC initiates contempt action against them on the basis of consent given by me in a few cases, it could send a sobering message to all not to abuse the right to free speech on social media platforms,” Venugopal said in that interview. According to him, he has only given consent for filing contempt petitions against those who have used extremely intemperate language and published obnoxious cartoons.

Also read: Kunal Kamra and the Elasticity of Justice

Under Section 15  of the Contempt of Courts Act, 1971, the Supreme Court may take action on its own motion or on a motion made by the AGI or Solicitor General. In practice, if the petitioners who seek to initiate contempt of court proceedings against individuals secure the AGI’s or SG’s consent, then they are deemed to have fulfilled the requirement under Section 15. Although the AG’s consent or lack of consent does not bind the bench, the Ashok Bhushan bench appears to have issued notices to the two out of deference to the AGI.

AG’s vulnerable consent

But the question of whether Kamra and Taneja’s tweets were “extremely intemperate” and “obnoxious”, would remain to be decided. Even if they are, the question whether they could scandalise or tend to lower the authority of any court, let alone interfere with the due course of any judicial proceeding or obstruct the administration of justice in any other manner needs to be answered, in order to fulfil the ingredients of contempt of court, as defined by the Contempt of Courts Act.

According to Venugopal’s reply to one of the complainants, who sought his consent, the four tweets by Kamra were “not only in bad taste but clearly cross the line between humour and contempt of court”. This must have been sufficient for the bench to infer that the proceedings need not be initiated. For the Act is not meant to be used against those opinions which are in “bad taste”  or those which merely cross the line between humour and contempt, as if these are two clearly-drawn binaries.

The AG has clearly failed to give his nuanced view on when humour ceases to be humour, and becomes contempt of court.    Again, the Act does not seek to punish all acts of contempt of court, but only those which scandalise, or interfere with due course of justice, or obstruct the administration of justice. As AG has not formed even a prima facie view on these, his mere observation that the tweets crossed the line between humour and contempt, without throwing light on which of the ingredients of contempt that they satisfied, should not have been taken seriously by the bench.

On Kamra’s tweet in which he was seen holding up his fingers with the text: “One of these two fingers is for CJI Arvind Bobde…ok let me not confuse you, it is the middle one”, Venugopal’s reply was that it was grossly obnoxious, and would equally be an insult to the Supreme Court of India.

Again, the AG is wrong to suggest that it amounts to contempt of court because something which is grossly obnoxious and even intended to be an insult to the Supreme Court of India, can still fall short of the ingredients outlined in the Act, while defining criminal contempt. The Act is not meant to punish all obnoxious views or insults about the court. Even if the AG’s view that the tweet is vulgar and obnoxious is conceded, how does it tend to lower the authority of the court as well as undermine the confidence that the litigant public has on the institution itself – as stated by him in his reply to the complainant – is not at all clear.

Also read: Attorney General Venugopal Would Be Shocked at US Comedians Making Fun of Judges

For the fact remains that it is difficult for anyone including the AG to prove these vague assertions convincingly, as Kamra’s followers on Twitter are most likely to consider them as utterances of a comedian, and enjoy them for their entertainment value.  To suggest that the “confidence of the litigant public on the court has been undermined” is again an impressionistic statement, and is not even one of the listed ingredients of criminal contempt in the Act. Again, merely saying  – as the AG does – that the tweets tended to lower the authority of the court cannot help to connect the dots between the alleged acts of contempt with the definition of criminal contempt.  The AG’s view fails to explain, and merely relies on conjectures and surmises, which are hardly sufficient to form a prima facie view.

Cartoonist Rachita Taneja. Photo: Facebook/Rachita Taneja

Taneja tweeted a cartoon depicting the BJP, Supreme Court, and a reporter with the text “Tu Janta Nahi Mera Baap Kaun Hai (You don’t know who my father is)”. Law student Aditya Kashyap who sought AG’s consent for initiating contempt proceedings against Taneja, also referred to another tweet by her dated August 7, in which she stated: “Let’s not forget how we got here”.  She is also accused of tweeting a caricature suggesting a quid pro quo relationship between the judiciary (as represented by the former CJI, and now Member of Parliament, Ranjan Gogoi) and the Centre in delivering the Ayodhya judgment.

The AG, in his reply to Kashyap, stated that Taneja’s tweets portrayed that the ‘Supreme Court of India was biased towards the ruling party”. Again, the AG appears to have drawn an erroneous inference that a view suggesting a bias of the Supreme Court towards the ruling party could satisfy any of the three ingredients of criminal contempt as defined under the Act (Section 2 [c]).  Similar views have been expressed by many writers in their analytical pieces in newspapers and news websites in recent times.

If a judgment of the court leads one to infer that it is biased towards one of the litigants, it should be considered as a statement of fact, because the court, while settling any dispute, is bound to satisfy one party and disappoint the other. As a corollary, the court is likely to be biased in favour of the stand taken by that party in the case, which is satisfied with the outcome.  The court’s bias in favour of the stand of one party to a dispute may be, without causing any offence to the court, could be interpreted as bias in favour of that party, considering the demands of brevity while tweeting.

As AG’s interviews reveal, he may be said to suffer from doublethink or cognitive dissonance.  One cannot stand for the freedom of social media users – as the AG claims he does – even while recommending initiation of criminal contempt proceedings against what appear to be innocuous tweets.

Also read: Backstory: Journalism and the Power of Laughter

On Thursday, the Bombay high court observed that ‘Tareekh pe Tareekh (adjournment after adjournment)’ is a fact, and criticism regarding frequent adjournment of cases will not be viewed harshly.  Justices S.S. Shinde and M.S. Karnik chose to be generous, when their attention was drawn to a tweet by Sunaina Holey, a litigant, whose case seeking quashing of FIRs against her was being adjourned repeatedly. Holey’s allegedly objectionable tweets against government officials including Maharashtra chief minister, Uddhav Thackeray triggered a slew of FIRs against her.

According to Bar and Bench, Justices Shinde and Karnik had observed on December 15, that judiciary must not waste precious time on contempt hearings which can otherwise be utilised for hearing important questions of law.  Contempt of court powers, Justice Shinde had reportedly said, should be used only as a last resort and should not be used against a lay person criticising courts or judges.

Are the AG and the Supreme Court listening?