From Sanitary Panels to Kunal Kamra — Why Can’t We Mock the Judiciary?
This week, the Attorney General of India consented to a law student’s request to bring contempt of court charges against the admin of the Instagram account Sanitary Panels, Rachita Taneja. The account is famous for stick-figure comic strips, often political and satirical in nature, with the most recent ones mocking the Indian judicial system. Posts include one showing the Supreme Court building topped by a saffron flag, and another depicting Republic TV’s Arnab Goswami, flanked by the BJP and Supreme Court, threatening “tu jaanta nahi mera baap kaun hai” (you don’t know who my father is). They criticize the Supreme Court’s decision to grant bail to Goswami, jailed for the abetment of suicide of an interior designer, while several journalists and activists remain jailed for frivolous, often made-up charges.
The posts drew the ire of not just a random law student, but also the Attorney General from whom he sought consent to carry forward his legal motion. The AG, in giving his consent, said, “the clear implication [of the posts] would be that the Supreme Court of India is biased towards the ruling political party, the Bharatiya Janata Party, and would tailor judgments for the benefit of the ruling party.” And that, AG K.K. Venugopal surmised, was “clearly calculated to undermine” the Supreme Court’s independence, and designed to attack its unflinching impartiality.
The Sanitary Panels decision comes just weeks after the AG gave consent to yet another law student to bring criminal contempt proceedings against comedian Kunal Kamra for similarly insinuating the Supreme Court is under the influence of the ruling party. At the time, the AG had written, “I believe it is time people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1971.”
This act, however, needs to be used sparingly, says Radhika Jhalani, an advocate and volunteer legal counsel with the Software Freedom Law Centre, a non-profit that works to protect the right to free speech and other freedoms on digital platforms. “I don’t think people in public institutions should be too sensitive to public criticism. It doesn’t set a good precedent. As a democracy, we should be open and accepting of dissent and criticism,” she says.
Jhalani acknowledges that the judiciary has a right to stand up to unfair criticism — unsupported claims that a judge is corrupt, for example — because it “can break people’s morale to approach the judiciary, which renders the administration of justice difficult,” she says, adding, “if you can’t go the courts for legal recourse, how else would you get anything done?” But mocking or criticizing the judiciary’s decisions don’t fall into the same category, she says. “Dissent is a big part of a democracy. We should learn to overlook these situations.”
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Others have mocked the AG’s decision itself, claiming someone holding such a high position in the judicial system of the country should have better things to do than cracking down on comedians. “In a country where 69% of the prison population is undertrials, one would think the Attorney-General’s first and foremost duty is to reduce this figure and second duty is to speed up trials,” a retired High Court Judge, Kamaljit Singh Garewal, wrote for India Legal Live in response to the Kamra decision. “It would be a very sad day for our Republic if [Kamra] is found guilty and sentenced to serve time, howsoever brief.”
Judicial institutions in progressive democracies around the world have started turning a blind eye to contempt charges, especially the kind that involves “scandalizing the court,” Jhalani says. But in India, people who criticize the court continue to be punished, to varying degrees. In the past, a Rs. 1 fine was levied upon Prashant Bhushan for tweeting how the Supreme Court is contributing to the destruction of Indian democracy; a Rs. 2,000 fine and one-day imprisonment were doled out to Arundhati Roy for challenging the court on a previous contempt charge against her; and a whopping six-month imprisonment was imposed upon retired Justice Chinnaswamy Swaminathan Karnan for outing corrupt judges within the judiciary.
Technically, there is a check in place to prevent these contempt charges, especially charges that try to suppress dissent, from multiplying uncontrollably: the AG. Any contempt of court charge needs to go through the AG; either the AG himself files the complaint, or a civilian brings his case to the AG and obtains the AG’s permission to file the contempt complaint. This gatekeeping, in theory, prevents any random person from bringing a contempt charge whenever they come across a tweet or artwork with which they disagree. The recent wave of contempt charges the AG has allowed sets a concerning precedent.
For India to go the route of other robust democracies around the world that have moved away from criminalizing dissent, criticism, and mockery related to the judiciary, Jhalani says, “we’d need a major reimagination of the concepts of sedition or free speech and expression.” And this reimagination becomes even more imperative in the age of social media, in which artistic expression, critical and otherwise, can, will, and should be seen by multitudes online.