The question is:
Question: What is contempt of court?
Answer: a joke.
That’s literally true in India today – three Supreme Court jokes, posted on Twitter by comedian Kunal Kamra, are likely to attract contempt of the court proceedings against him. That is, in fact, the wise advice of the Attorney General who, just a couple of days earlier, had opined that accusing a SC judge of favoritism and attempting to overthrow a state government did not amount to contempt. It should come as no surprise, of course, that in this case, the worthy stakeholder was a prime minister ally of the BJP.
The elasticity of justice in this country is truly amazing and is on the same basis as the economic principle of elasticity of demand. The latter states that the higher the price of a commodity, the lower its demand; the first states that the more influential a person is, the more benevolent the law and its guardians are.
Kunal Kamra is a comedian, and a good one too. Your job is to make jokes and get people down a couple of times. It is your constitutional right to practice this profession, and you do it better than most judges. In fact, one writer has described him as the ‘laughing Gandhi’, for his courage to hold up a mirror to the powerful, albeit with a hint of caustic humor.
Why should their lordships be so enraged with a couple of attacks aimed at them? He doesn’t forgive anyone, not even the prime minister or his pit bull host. Kamra belongs to an old tradition of court jesters: remember Akbar and Birbal, Patch Sexton at the court of Henry VIII (who inspired Shakespeare’s fool in King Lear), Whose job it was not only to amuse the king, but also to remind him of some home truths. Comedians are important sounding boards for all rulers, and our legal czars would do well to review history, if not the constitution. Calling the Supreme Court a joke is only a joke, Your Honor, unless you feel deep down in your heart that it is more than that, that it could be a terrible truth, in which case it is not the honor of the court that is at stake. here, but a guilty conscience.
And by the way, this is the Supreme Court that we are talking about here, not the court of King Arthur or the court of Kublai Khan. This is a court of a democratic country, created by a constitution framed by us, the people, and paid for by the very citizens who do not have access to it. Criticism of this court, if there is no malice or hidden intention behind it, cannot be grounds for the Attorney General or the judges to call the critic a contemnor. Pomposity and pride do not go well with an honest and equal administration of justice. Humility could be a better substitute.
Here I remember another funny incident. A senior justice of the United States Supreme Court had gone to his old law school as the chief guest for a function. Upon meeting the dean, he remarked in a lighter tone, “Dean, do you still teach your students about pomposity and boastful judges?”
The dean smiled and replied, “No, Your Honor, we let you find out for yourselves.”
Are we finding out now for ourselves, with so much time and energy expended by the court to indulge its aggrieved pride by dragging out would-be contemporaries? Shouldn’t this time (paid for by the taxpayers) be better spent in an introspection by our judges to try to find out why exactly the common citizen is so outraged by the way the court works lately, to honestly consider why the networks are full of mockery against them? Reflect on whether the accolades of people like Arnab Goswami and the BJP spokesmen are really the certificates of good conduct they prefer over the recognition of millions of ordinary, law-abiding and disjointed citizens?
It seems to be ‘contempt reigning’ these days, which of course is another joke, considering that important issues have to do with our federalism, electoral financing, citizens’ freedom, internet access and freedom of expression. they are never mentioned in the list of causes. But if contempt is the flavor of the day, then one wonders: why didn’t the court initiate contempt against Jammu and Kashmir’s Chief Secretary and DGP, whose administration had sworn that former MP Saifuddin Soz was not in custody, while That the next day the police were caught on video forcibly preventing you from leaving your home or talking to reporters? Is Kamra’s tweet a greater danger to the republic than open defiance and illegal actions by the government of Jammu and Kashmir?
As a common citizen who owes no allegiance to any political party, I have a lot to worry about our legal system, which seems to become more opaque, irresponsible, and biased with each passing day. One who has abdicated his main function: to act as a control of a powerful and majority executive. The rule of law is being replaced by the case law of the sealed cover, the fait accompli and the postponement. It’s not just about Arnab Goswami and his bail, when hundreds of similarly placed people with their bail requests being repeatedly rejected or their hearings postponed have been behind bars for months.
It is not just a trial that denies public places to citizens who protest against a government. It is not even an order that does not allow an opposition prime minister to take action against defectors from his party who are bent on overthrowing his government. These are symptoms of a progressive infection against which we, and not just Kamra, must speak out before it consumes the entire judicial framework. Before descending to what Pratap Bhanu Mehta, in a November 18 article in the Indian express qualifies as “democratic and judicial barbarism.”
Despite the honorifics attached to their names, our judges must realize that they are not celestial beings; the constitution does not grant them their extraordinary privileges and protection because they embody some kind of divinity. It does so because they are expected to do a difficult job: confront the government and hold it to account every time it crosses a constitutional red line. That is no longer happening since the last three CJIs at least, as Prashant Bhushan had pointed out in his now famous tweet. In a democracy there is no judicial Teflon, and there is no “lese majesty” when there is no majesty left in an institution. Sriram Panchu, Senior Counsel at Madras High Court puts it devastatingly in a brilliant article in the Hindu November 16:
“The power (of the Supreme Court) does not come from articles 32 or 226, but from the public esteem and respect in which it is held, and that comes from the extent to which it acts as our constitutional protector. In direct proportion. Without that, there are only decorations. “
Cases that can embarrass the government go unheard for years, without explanation. The college appears to have completely surrendered to the government in the matter of appointing and transferring judges (how can we forget the midnight transfer of Judge S. Muralidharan from the Delhi High Court when his questioning of Delhi police in the riot case threatened to expose their mischief?)
The application of the law has become so arbitrary and capricious that sometimes you wonder if you are in court or in a casino. Goswami is released on bail at a hearing, others are asked to turn to the higher courts or the lower courts. An 83-year-old priest, who suffers from Parkinson’s disease and cannot hold a glass, requests a sip or a straw: he is given a date three weeks later to hear the case. An eminent academic and poet, who should never have been in jail in the first place, suffers from COVID-19, dementia, incontinence, and severe UTI; His bail requests are repeatedly rejected and he is transferred from one hospital to another. Our courts are losing not only a sense of justice, but also a sense of simple humanitarianism. The law is supposed to be strict, not cruel and barbaric, how do you explain it to our judges?
Far from reigning in the excesses of government, which is its constitutional duty, the higher judiciary seems to encourage it with its silence, selective orders, and even acceptance of sinecuras and post-retirement appointments. Many years ago, a Chief Justice, when told by the then Prime Minister that he expected a “cordial” relationship with the Supreme Court, had the integrity to reply that the relationship between the executive branch and the judiciary should be “correct”. and not cordial. Today it is impossible to even conceive of this kind of righteousness. This amalgamation of courage and principle, unfortunately, is found only in the pages of history, and also only until the Minister of Education reviews the syllabus.
In the hands of the current government in the Center and in some of the states, the law is running amok and the CS seems reluctant to stop this arbitrariness. The application of the laws is no longer based on generally accepted principles, as it should be, but is subject to individual interpretations. Even repeated rulings from the higher court are no longer binding on the lower courts, it seems. Some examples are the laws on sedition, freedom of expression, criminal defamation, instigation to suicide: although the Supreme Court reduced their scope and application to prevent their misuse, lower courts continue to imprison people in jails or cells only for put it like that. police, without even examining the evidence, or the lack of it, before them. In fact, these laws have become important tools of prosecution in the hands of the executive.
Similarly, the often-cited homily “bail is the rule and jail the exception,” is just that, a homily that takes a lot of faith to believe, as the many high-sounding and self-righteous obiter dictates delivered by the judge DY Chandrachud while overturning the Bombay high court in the Arnab Goswami case. One would have expected that the CS, both as a higher court and as the administrative head of the judiciary, would have done something to ensure that its rulings and decisions are observed and respected. It hasn’t, and we’re descending into some kind of legal wasteland.
And it’s not just people like Kunal Kamra who are increasingly expressing their misgivings and frustration at this situation, concerns are being voiced by eminent retired judges of the CS and higher courts, high-ranking members of the legal fraternity, sections of the media. still retaining the backbone, retired government officials, academia, frustrated litigants, and family members of those caught up in this dystopian legal system. Even international organizations associated with human rights and the judiciary have openly criticized us and called for reforms.
How many contempt petitions will you list, gentlemen? A joke repeated too often stops being funny and loses steam. Listen to Kamra, the honorable Members and the Attorney General. Yours is the voice of a growing number of people. Like all comedians, he may be exaggerating a bit, but not much, I can assure you.
Avay Shukla is a retired IAS officer. A version of this article appeared on his blog and has been edited by The wire by style.
.
