In Approving Contempt Against Comics, AG Isn’t Acting for India

KK Venugopal is ignoring the context in which cartoonists & comedians express dissent – to the SC’s own detriment.

(This story was originally published on 7 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.)

Article 76 of the Constitution, which creates the post of Attorney General, uses slightly curious wording. The first sub-clause says that “The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General for India” (emphasis supplied).

The implications of this wording are not the easiest to ascertain.

There was only a limited discussion in the Constituent Assembly on the draft article that eventually became Article 76, the post doesn’t have the history and tradition it has in the United Kingdom, and there is little scholarship about the role of the Attorney General here, unlike the USA, where the need to serve the public interest is now considered part and parcel of the position.

But we do have some clues. One is that the post isn’t tied directly to the government in power, as the Constituent Assembly expressly rejected a suggestion to make the AG resign whenever the Prime Minister does.

Another clue comes from sub-clause 2 of Article 76, which outlines the duties of the AG: not just to give advice to the Government of India on legal matters, but also to “discharge the functions conferred on him by or under this Constitution or any other law for the time being in force”.

So with these clues in mind, what does it say about the current holder of this high office, that he has been cheerily handing out his consent for criminal contempt petitions against stand-up comedians and now even cartoonists?

Because of which, by the way, a contempt petition has actually been filed in the Supreme Court of India against Rachita Taneja, the illustrator of the Sanitary Panels comics, for her cartoons about the Supreme Court of India.

Contempt is the New Black

Yes, the reason for this little jaunt into the role of the Attorney General for India is the well-considered and extremely necessary decision taken by the current holder of this august office, the veteran senior advocate KK Venugopal, to grant his consent for a criminal contempt petition against the cartoonist behind the Sanitary Panels comics.

“I have examined the three tweets and the cartoons depicted in the tweets. I am satisfied that each one of them is intended to denigrate the Supreme Court of India and to lower its authority in the eyes of the people,” he wrote gravely in his letter to the law student who had requested his consent.

This comes just a few weeks after he decided to pull an Oprah and approve requests by a classroom’s worth of sincere and well-meaning law students who had all been left traumatised by comedian Kunal Kamra’s tweets criticising the Supreme Court after its decision to grant Arnab Goswami bail. One of those law students has already filed a contempt petition in the apex court against Kamra.

Who is Really Making a Mockery of the Courts Here?

Now let’s be clear here: the Attorney General isn’t overreaching here by answering these requests for his consent. The Supreme Court’s rules on contempt cases clearly state that criminal contempt petitions by third persons can only be filed with the apex court after they get consent in writing of the Attorney General or the Solicitor General.

Nor is this a matter of the Attorney General getting his priorities wrong – that’s more of the Supreme Court’s problem, given its delays in listing important constitutional matters like the challenges to electoral bonds, the CAA, the abrogation of Article 370 and, lest we forget, the legality of demonetisation.

No, the problem here is with the holder of such an important constitutional office making decisions which appear to go against the spirit of the Constitution itself.

Back when Prashant Bhushan was hauled up for criminal contempt by the Supreme Court for his tweets, Venugopal had urged leniency, and even told the judges hearing that case that there were comments by various retired judges who had raised similar criticisms of the judiciary.

This was a sound approach from the AG, as it recognised that there are bona fide criticisms and concerns about the apex court, even as he urged Bhushan on the side to express regret over any offence caused.

A few months later, however, and the AG seems to be in a far more aggressive mood when it comes to contempt of the top court, warning darkly in Kamra’s case that “freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiably and brazenly will attract punishment”.

When it comes to the Sanitary Panels tweets, he contends that the cartoons are

• “clearly calculated to undermine the public confidence in the independence and impartiality of the Supreme Court of India”;
• “a clear attempt to turn the minds of the people against the then Chief Justice of India, and in the bargain against the Supreme Court judiciary as a whole”; and
• “deliberately intended to shake the confidence that the people have in the Apex Court of the country and to lower the authority of this institution”

Seriously?

Have we really reached a point where a cartoonist with 20 thousand followers on Twitter and 84 thousand followers on Instagram is capable of undermining public confidence in the Supreme Court? Is the Supreme Court of India – often termed the most powerful court in the world – on such shaky footing that some sharp cartoons are enough to pose a threat to its standing?

If that is truly the case, then the Supreme Court needs to ask itself some very serious questions about how its reputation has come to such a sorry pass.

And don’t forget the imputed intent here: the AG actually thinks that Rachita Taneja, the cartoonist, is actively trying to undermine the apex court? Has the concept of dissent become so alien in this country that any criticism of the powers that be is construed as an attempt to undermine rather than urge reform?

Yes, the cartoons hold no punches, and make their points –

• about the Supreme Court’s willingness to hear and grant relief to Arnab Goswami;
• about what the Supreme Court’s willingness to grant Arnab, a fervent supporter of the BJP government, bail but not other journalists who are critics of it, can seem to imply about the court’s own political predilections;
• about the extremely poor impression that Ranjan Gogoi’s appointment as a Rajya Sabha MP, just months after retiring as CJI (and heading the Ayodhya case bench) gave to everyone

– without any hedging or qualification or mincing of words.

But they’re cartoons, for heaven’s sake!

Is the cartoonist supposed to write long and detailed arguments with explanations for why there are bona fide reasons for their joke? Are they supposed to attach a 100-page plus affidavit giving examples to back their argument (not that that even worked)?

Obviously not!

Comedians and cartoonists have to make their point concisely and sharply, their work is meant to provoke debate and thought. And this debate and thought is essential to a democracy, essential to the right to freedom of speech and expression. Yes the cartoons and joke impute motives to the court which is normally a no-go, but these are jokes, the point cannot be laboured, and there is no room for niceties.

Is contempt a valid ground to restrict freedom of speech under the Constitution?

Sure, it is, but let’s not forget, any restriction on the fundamental rights has to be reasonable. Ignoring the context of how cartoons function, the way in which jokes and satire form part of a strong culture of dissent and critique, can hardly be considered reasonable.

There is a reason that the Supreme Court in multiple judgments had held that the power of contempt has to be exercised exercised cautiously, and with circumspection, as the respect and standing of the judiciary should come from its own judgments, not clamping down on criticism.

Take these lines from one such judgment:

“Frequent or indiscriminate use of this power in anger or irritation would not helpt to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

Chief Justice Gajendrakar’s judgment in Special Reference No.1 of 1964

Or these wise words about the balancing act between protection of free speech and exercising the power of contempt:

“... the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage... the countervailing good, not merely of free speech but also greater faith generated by exposure to the actinic light of bona fide, even if marginally overzealous, criticism cannot be overlooked. Justice is no cloistered virtue.”

Justice Krishna Iyer’s judgment in Baradakanta Mishra vs Registrar Orissa High Court (1974)

The AG’s consent isn’t in itself a conviction for contempt, but he is clearly expressing an opinion that these cartoons amount to contempt, that in his opinion, it is more important to go after this ‘overzealous’ criticism, than allow freedom of speech to shed some light on the serious problems that the judiciary as an institution is currently facing.

And in doing so, it is difficult to say he is acting as Attorney General for India any more. If that role is to have any meaning, it requires him to consider the constitutional implications of what it means for him to perform his duties (especially those not as the government’s law officer).

His current stance undermines free speech and attempts to have important debates about a public institution in India – there is a reason other liberal constitutional democracies, (including the UK where we derived this concept from in the first place) have all gotten rid of the concept of criminal contempt for scandalising or lowering the authority of the court.

Indeed, endorsing the targeting of comics and comedians with these contempt cases is hardly the service to the institution of the judiciary he seems to think it is.

Instead, this will undermine public confidence in it far more, as it will be seen as a hyper-sensitive institution whose immense powers are being called upon to punish puny jokesters who have basically no power in comparison – powers it can invoke suo motu without the AG’s help if it really thinks there’s a need to do so.

A Falooda of the Supreme Court’s Own Making

This current plague of requests for contempt action for comments about the apex court hasn’t arrived in some sort of vacuum.

Yes, there have been over-eager law students and lawyers in the past as well who have sought to gain a few meagre seconds of fame by trying to show they are more loyal than the king, but there is more to it than just a bit of garden-variety toadying now.

The difference here is the Prashant Bhushan contempt case, where a bench headed by Justice Arun Mishra doggedly went after the lawyer-activist for two tweets they didn’t like. Despite the storm of criticism from legal experts and civil society, the court convicted Bhushan of criminal contempt – in a judgment that betrayed many of the very failings that Bhushan alleged against it.

In that judgment, the court found that Bhushan’s tweets were guilty of criminal contempt without considering his detailed arguments and affidavit for why his opinion was bona fide, and without any analysis of how exactly one man’s opinion was enough to undermine the judiciary as an institution.

In doing so, it set a remarkably poor precedent for what should be considered criminal contempt of court – and has obviously now been cited by each of the law students who have sought contempt action against critics of the court since. It’s not just been Taneja and Kamra – they have also sought to go after Swara Bhasker, Rajdeep Sardesai and even Bhushan once again.

There is no doubt a criticism to be made of these law students as well here, who seem to think that the most pressing use of their time is to protect the apex court from criticism, rather than thinking about how the law should be used to protect the most vulnerable.

But when the mighty Supreme Court itself has set this example – prioritising the Bhushan case over any number of other vital constitutional matters, and failing to conduct any proper analysis to balance the protection of the court’s reputation with the protection of free speech – they don’t have primary responsibility for this.

One might have hoped that the Attorney General for India might have sought to set a better example, might have sought to course-correct and reduce the use of this glaringly problematic penal power against dissenters.

But it’s 2020, so perhaps it’s not surprising that hope has also been dashed.