No Contempt of Court in Satire, AG Wrong to Target Kunal Kamra, Rachita Taneja: Mukul Rohatgi

In an interview to Karan Thapar, former Attorney General Mukul Rohatgi said that "contempt is when it becomes impossible for a court to function”.

In a rare instance of a predecessor criticising his successor, former Attorney General Mukul Rohatgi said that the present Attorney General K.K. Venugopal made a mistake when he granted permission for comedian Kunal Kamra to be prosecuted for contempt for his tweets. Venugopal, he said, made a second mistake when he subsequently gave permission for the cartoonist Rachita Taneja to be tried for contempt for her cartoons.

“The Attorney General should not have granted permission,” he said, in a 26-minute interview to Karan Thapar for The Wire. “People are entitled to speak their mind”.

In fact, he said, “By taking notice of these matters you are giving importance to something that doesn’t deserve it.”

Speaking about Kamra’s tweets he said, “I have seen the tweets and I have been Attorney General as well. The tweets of Kamra may be in bad taste, but they are not contempt. It’s too small an issue to take note of.”

When the Attorney General’s justification for granting permission for Kunal Kamra to be prosecuted was quoted to him – “this is gross insinuation against the entirety of the Supreme Court of India, that… (it) is not an independent and impartial institution…  but on the other hand is a court of the ruling party, the BJP, existing only for the BJP’s benefit” – Rohatgi said: “I don’t think it (the tweets) is contempt. May be outspoken or even wrong. But we should shrug our shoulders and move away.”

Rohatgi told The Wire that it’s commonplace for people to say that politicians are corrupt or bureaucrats are corrupt. He suggested that if something similar is said of the court, “the shoulders of the court are broad enough” to take it.

On the subject of Rachita Taneja’s cartoons, Rohatgi said they are “definitely not contempt, but satire”. When questioned about the Attorney General’s claim that her cartoons give the impression the BJP is “somehow interested in protecting Arnab Goswami and has prevailed upon the Supreme Court to do so” and that they “denigrate the Supreme Court and lower its authority in the eyes of the public”, he categorically said, “I don’t agree with the Attorney General’s view”.

Rohatgi made it clear that in his eyes “contempt is when it becomes impossible for a court to function”. However, he added, “But even then, I would hesitate to take contempt action.”

He illustrated his answer by asking if it is contempt if a litigant, who has been fighting a case for decades, throws something at the judges in anger or frustration or behaves in a way that holds up the functioning of the court.

In The Wire interview, Rohatgi said that his successor Venugopal should have recalled what the British media said of that country’s judges in 1987. After the Spycatcher judgement, the Daily Mirror called the judges, “You Old Fools”, but Justice Templeton did not consider it contempt. Similarly in 2016, after the Brexit ruling, when the Daily Mail called judges, “Enemies of the people”, the judges did not consider it contempt. He agreed that Venugopal should have been similarly broad minded.

Speaking about Venugopal, Rohatgi said, “Venugopal is a very well-known, renowned and experienced lawyer. But in this instance, I would disagree with him. I would lean in favour of freedom of speech unless it’s a calculated attempt to make justice impossible.”

Rohatgi was asked if Indian judges should follow Lord Denning’s famous advice about the law of contempt. In 1968, Lord Denning had said: “We will never use this jurisdiction as a means to uphold our dignity… nor will we use it to suppress those who speak against us. We don’t fear criticism, nor do we resent it… we must rely on our own conduct itself to be its own vindication.”

Rohatgi’s answer was sharp, short and simple. “Undoubtedly,” he answered.

Rohatgi was also asked if the Supreme Court judges should bear in mind that their court is supreme because it’s final and not because it’s infallible, and that judges deliver justice but do not embody it and therefore mustn’t take themselves too seriously. Again, his answer was short, sharp and simple: “I entirely agree.”

However, Rohatgi made clear that he was not advocating abolition of the law of contempt. He said, “In India we are not ripe or mature enough to abolish the law of contempt.” However, Rohatgi immediately explained this by adding, “Remember contempt also includes violation of a court’s order.” He said perhaps up to 90% of the contempt cases are because of a breach of a court injunction or ruling.