Karan Thapar | Contempt of court': A relook may be needed

Once again contempt of court is in the news. In September, the human rights lawyer Prashant Bhushan was tried and found guilty on this count. Now the stand-up comedian Kunal Kamra faces a similar charge, this time endorsed by the attorney general. While the Supreme Court will no doubt focus on what’s been said about its judges, many others will ask whether judges need to accept satire and criticism with good grace rather than seek the protection of the law of contempt and use it to punish their attackers.

Let’s start with the case against Kumal Kamra. The attorney general has found his tweets and two-finger gesture contemptuous. “This is a gross insinuation against the entirety of the Supreme Court of India that … (it) is not an independent and impartial institution … (but) is a court of the ruling party, the BJP, existing only for the BJP’s benefit. All this in my opinion constitutes criminal contempt of court”, Mr Venugopal declared.

If true, the attorney general’s finding is indeed grave. But do the two Kamra tweets that Mr Venugopal cites amount to this? The first says: “Honour has left the building (i.e. the Supreme Court) long back”. The second says: “The Supreme Court of this country is the most supreme joke of this country”. Frankly, the attorney general has invested more meaning in these tweets than exists in them.

The tweets are an attempt at satirical humour and, admittedly, not a particularly witty one. They are not meant to be kind or polite. The intention is to lampoon or, even, lacerate. But is this “gross insinuation”? Do they suggest that the Supreme Court “is a court of the ruling party, the BJP, existing only for the BJP’s benefit”? Actually, to ask the question is to answer it. And it’s “NO”.

The two-finger gesture is more tricky. It’s both more clever and questionable. At one level, the raised index and middle finger of Kamra’s left hand is a V signal. However, the accompanying message – “one of these two fingers is for CJI Arvind Bobde … ok let me not confuse you it’s the middle one” -- could convert this into a rude gesture. Actually, crude might be a better word. It’s telling the Supreme Court where to get off. But is that contempt? Even if it is, it’s too immature to take seriously. Judges -- and not just because of their age -- should rise above it.

This brings me to a more important and wider question about the law of contempt. Has it outlived its utility? And how should we handle cases that could amount to contempt today? Let’s go back to its origin to understand its purpose.

The concept of contempt is centuries-old British law which was abolished by Britain in 2013. At the time the country’s Law Commission said the purpose was not just “preventing the public from getting the wrong idea of judges … but where there are shortcomings it’s equally important to prevent the pubic from getting the right idea”. In other words, one intention was to hide judicial corruption. The concept, therefore, ab initio, clashed with the need for transparency and, of course, freedom of speech.

So no wonder enlightened British judges have ignored it. As far back as 1968, Lord Denning, Britain’s former Master of the Rolls, had this to say of the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity … nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It’s the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest … we must rely on our own conduct itself to be its own vindication.”

In 1987, after the Spycatcher judgment, when the Daily Mirror called Britain’s Law Lords “You Old Fools” or, in 2016, after the Brexit ruling, when the Daily Mail called three judges “Enemies of the People”, the British judiciary consciously and sensibly ignored the headlines and did not consider contempt prosecution. In fact, Lord Templeton’s comment on the Spycatcher headline is worth recalling: “I cannot deny that I am old; it’s the truth. Whether I am a fool or not is a matter of perception of someone else … there is no need to invoke the powers of contempt.”

Some of our own judges have shown similar wisdom. In a 2008 lecture, Justice Markandey Katju had this to say: “If a person calls me a fool, whether inside court or outside it, I for one would not take action as it does not prevent me from functioning, and I would simply ignore the comment or else say that everyone is entitled to his opinion. After all, words break no bones”.

More important, Justice Katju was crystal clear about when contempt could apply and when it would not. “The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it’s harsh criticism … the only situation where I would have to take some action was if my functioning as a judge was made impossible … after all, I have to function if I wish to justify my salary.”

I think that answers the questions I began with. While justice is important, judges must not take themselves too seriously. Even if their amour propre is offended it does not mean the institution has been questioned or justice brought into disrepute. Judges deliver justice, they do not embody it. They should never forget that their court is supreme because it’s final, not because it’s infallible. When they lapse, they can be criticised or satirised. And it does not have to be polite or, even, fair.

I hope the Supreme Court will bear this in mind when it pronounces on Mr Kamra’s case.