'Criticism of the judiciary in all functional democracies is treated as a legitimate exercise of free speech.' -George Orwell
This statement was made in 1938 in the context of British judicial establishment in India. It is an old common-law offence. Scandalising the working of judges and questioning the judiciary was considered as an impediment to the administration of justice. Nonetheless, this law had not been practised for over 80 years now in England. Therefore, the law commission in 2012 recommended for its’ abolition. That subsequently took place through the Crime and Courts Act 2013.
The Commission found that the law violates the right to freedom of expression, it shouldn’t be retained until strong or principled justification lies with it, then it doesn’t keep up with the current social attitude. They also pointed out that the conditions for committing this offence are uncertain, which gives the room for judges to prosecute in any manner that may stymie free speech or legitimate criticism. Nonetheless, English jurisprudence still establish insulting judiciary is fairly unkind and unacceptable but criticisms in good faith for the public interest is not an offence.
Laws relating to Contempt of Court
- The power to punish for contempt rests with the Judges under the Contempt of Courts Act, 1971.
- Section 2(b) states civil contempt and Section 2(c) states criminal contempt.
- Article 215 of Indian Constitution gives power to High Courts to punish for its contempt.
- Article 129 of Indian Constitution gives power to Supreme Court to punish for its contempt.
This law came in an era where deferential respect to the authorities was the norm but presently with the existence of human rights network protecting civil liberties of an individual and holding accountable the institutions of power, things have changed completely.
What Happened in Kunal Kamra Case?
Criminal Contempt proceedings were run against Kunal Kamra for his tweets against Chief Justice of India and Supreme Court of India. Kunal Kamra, the Indian Stand- up comedian, however, denied apologizing for his tweets.
Even in 2017, Comedian Kunal Kamra mocked University Students through comic comments being called anti-national. Recently, Attorney General of India also gave his consent to run contempt of court proceedings against Kunal Kamra. Some of his tweets that created controversies and dealt as contempt of the Honourable Supreme Court were:
- The Supreme Court of this country is the most Supreme joke of this country.
- The pace at which the Supreme Court operates in matters of “National Interests” it’s time we replace Mahatma Gandhi’s photo with Harish Salve’s photo.
- DY Chandrachud is a flight attendant serving champagne to first class passengers after they’re fast tracked through, while commoners don’t know if they’ll ever be boarded or seated, let alone served.
- All lawyers with a spine must stop the use of the prefix “Hon’ble” while referring to the Supreme Court or its judges. Honour has left the building long back.
What Happened in Prashant Bhushan Case?
There were two tweets made by the eminent lawyer Prashant Bhushan.
1. One on 29th July. That was made in reference to a picture of CJI Bobde seated on a Harley Davidson bike, alleged that the CJI was enjoying expensive bike rides while keeping the Supreme Court under lockdown.
Under the Contempt of Courts Act 1971, sec 15 enables the High Court or Supreme Court to take cognizance suo moto or on the motion consented by Attorney or Solicitor General. Therefore, this act doesn’t permit the court to convert the petition under Sec 15(1)(b) into a suo motu petition.
2. Another tweet was made on 27th June 2020 which was about the working of the last 4 CJIs and faith in judicial transparency. It reappeared in the newspaper on July 22, 2020, the day on which Mahek petition was listed in Supreme Court. The apex court took suo motu cognizance of the second tweet under Sec 3(a)of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 which is a valid procedure.
The 108-page judgement runs through the copious extracts from the English and Indian Judgements and decides to analyze the tweets in the light of precedents.
Finally, on August 31st Prashant Bhushan was let off by the apex court after direction to submit Rs. 1 as fine before 15th September. Mr. Bhushan submitted supplementary clarification on the tweets saying it was tweeted in bonafide beliefs and nothing was made in order to harm the position of the court. Also, in Kunal Kamra Contempt case, on November 12th, Attorney General of India consented for contempt of court proceedings against Kamra’s tweets.
Our Constitution provides every citizen with the fundamental right to express. This right is not only safeguarded under our constitution, also India being signatory to the International Covenant on Civil and Political Rights. It obligates to provide right for expressing ideas and information. Nonetheless, it is not an absolute right and restriction lies to the limit where it is necessary and proportionate to the respect of rights or reputation of others. In the same manner lawyers are also like other citizens entitled to belief, assembly association and expression.