The ideal SC response to Kunal Kamra’s tweets? Defend liberties of all Indians like it did for Arnab

On November 11, the Supreme Court in a special sitting during vacation granted interim bail to Republic TV anchor Arnab Goswami. He had been arrested by the Maharashtra police on November 4 in a case of abetment to suicide.

Justice DY Chandrachud, believed to be one of the liberal judges in the institution, remarked that if the Supreme Court did not intervene in such a matter, the country would be walking the path of destruction. Only two days earlier, Goswami was denied bail by the Bombay High Court. His bail application was pending before a sessions court. But after a Supreme Court hearing that lasted for hours, the anchor was granted liberty. He walked out of Mumbai’s Taloja jail that evening.

One could view Justice Chandrachud’s comments as a reiteration of the court’s fundamental principles. When citizens are targeted by the state and lose their liberty, a crucial fundamental right, the court is expected to rage against this. After all, the father of Indian Constitution, BR Ambedkar, had famously remarked that the most important provision of the document he helped put together was Article 32, which provides citizens the right to approach the apex court for enforcement of fundamental rights.

Given that Chandrachud’s comments that are fresh in public memory, one would expect the court to use the same standards that it deployed for Arnab Goswami in other cases, especially in those where it seems like the state is targeting an individual.

But on Monday, Chief Justice of India SA Bobde remarked that the Supreme Court was trying to discourage Article 32 petitions, given a surge in such cases. He was hearing a petition filed on behalf of Siddique Kappan, a journalist from Kerala who had been arrested under the Unlawful Activities Prevention Act by the Uttar Pradesh police while he was heading to report on the gruesome rape and murder of a Dalit woman in Hathras last month, The matter was eventually adjourned to November 20 after notices were issued.

On Friday, Chief Justice Bobde took exception to the media reporting of the case. He claimed media had reported that Kappan was denied relief. “There was very unfair reporting of our earlier order,” he remarked.

Fundamental right?

On November 6, however, in yet another matter involving Goswami, in which a privilege notice from the Maharashtra Assembly against the TV anchor was brought before the court, Bobde had asked, “What is Article 32 for?... 32 itself is a fundamental right!”

Goswami had claimed that the Assembly secretary’s letter was an attempt to intimidate him and question his right to go to the Supreme Court over the issue. “How dare he say that?” asked the chief justice when the contents of the letter were revealed to the bench. A contempt notice was then issued to the official.

While all this was happening, Kunal Kamra, a stand-up comedian, put out a series of tweets criticising the court for the manner in which it had fast-tracked Goswami’s bail plea, even as thousands of undertrials languishing in jails across the court find it difficullt to get a hearing.

Various people immediately sent letters to the Attorney General KK Venugopal asking for permission to prosecute Kamra for contempt of court. The attorney general promptly gave his go ahead, after which petitions have been moved before the Supreme Court seeking contempt action.

These are events of just a single week. But for some time now, many have been watching the Supreme Court’s functioning with distress. Even as matters of great national importance remain unheard by the court, the Centre has gone ahead with implementing its actions.

Kamra’s outburst, it could be argued, opened the sluices gates of a reservoir of disappointment. That someone would muster the courage to so openly mock the court for its functioning cannot be dismissed as mere bravado.

Losing credibility

The Supreme Court has had difficult times in the past. During the Emergency, its failure to come to the rescue of the people’s right to life and liberty left a blot on its reputation as it actually upheld the powers of the state to summarily suppress fundamental rights. It took the court a fair bit of time to repair its image.

But criticism persisted that the court’s functioning often depended on how firm the executive was perceived to be. Whenever the government at the Centre was strong, as it is under Prime Minister Narendra Modi, some saw the court losing its zeal to protect citizens. This is in contrast to its functioning when the Centre and the ruling party are weak.

One could argue that despite these fluctuations in the way the court functions, the intermittent displays of judicial eagerness to come to the aid of the people had managed to keep intact the hopes of the people in the court. There was always an expectation that even if the court slipped on occasion, it would rebound.

This was also a function of the widespread belief that anyone is better than a politician, an attitude that the judicial system itself has encouraged by its periodical interference in policy-making in the form of public interest litigation. Thus, while the political class was percieved to be the villain, the judiciary was the saviour.

This reverence that Indians, especially the elite, showed the Supreme Court and the High Courts ensured that its intentions were rarely questioned. It meant that the voices of groups that historically did see deep problems in the manner in which the courts function, such as Dalit-Ambedkarite and OBC movements, were buried in the larger discourse. A narrative was constructed that even though justice may be delayed, with the powerful Supreme Court at the top, it would not be denied.

The other factor contributing to the lack of robust and consistent criticism of the court was the contempt of court laws.

This mix of respect for the court and fear of contempt laws discouraged any attempt to be irreverent to the court. Irreverence towards individual judges by questioning their motives was an even bigger crime. This despite the fact that judges are creations of the same social conditions as the society that they survey. In India, they are mostly upper-caste men. As one member of the Constituent Assembly said while opposing the move to make contempt of court a restriction on free speech, judges do not have two horns – they are also human beings prone to making mistakes.

But an institution in a constitutional democracy cannot expect to sustain its credibility purely on its record. The court is expected to be constantly vigilant, to be the sentinel on the qui vive.

Tweets as an effect

For those heavily invested in the ideals of liberty, equality and fraternity, the past few years of the courts have been disconcerting.

The Supreme Court has failed to act with alacrity in petitions challenging some of the Centre’s most controversial decisions. The electoral bonds case has been pending for years. The Constitutional challenges to the Citizenship Amendment Act and to the abrogation of Jammu and Kashmir’s special status under Article 370 have not been taken up with the seriousness they deserve.

Petitions seeking liberty to those detained in Jammu and Kashmir after the move against Article 370 did not attract the same urgency that Goswami’s petition did.

In the Bhima Koregaon case, courts have functioned so poorly that 83-year-old Stan Swamy, suffering from Parkinson’s disease and unable to hold a glass because of tremors, is fighting to get a sipper/straw in jail.

But what did elicit a quick response were tweets by lawyer Prashant Bhushan criticising the court and the Chief Justice of India. That the judges found time to hold Bhushan in contempt after several hearings in the middle of a pandemic, when matters of great constitutional importance were pending, said more about the court than the lawyer’s tweets.

Given this context, public disappointment had been building. Kunal Kamra’s tweets have to be seen as the first of the sluices opening, an effect of a cause.

Whether Kamra’s method was right or wrong is a futile debate. Many may not even consider them funny and dismiss them as attempts to attract publicity. But some of the finest humour this world has seen involved mocking the powerful. Cancelling the right to be irreverent would be a fatal blow to the very idea of free speech and artistic freedom – even if the joke seems to be in bad taste.

Where a dismissive laugh would suffice, some now want to use the threat of jail to silence Kamra.

Unfortunately, the country’s attorney general, one of the most celebrated lawyers of independent India, has given his approval to this strategy. It is difficult to believe that this is the same person who only months ago so eloquently stood up and asked the court not to hold Bhushan in contempt.

Response through deeds

To be clear, it is only the attorney general who has given his approval for Kamra to be prosecuted for contempt of court. While several petitions have been moved for this purpose, the court is yet to take a call on them.

It is eminently possible that the court will shrug Kamra’s tweets off its “broad shoulders” and move on. But given how the court approached Bhushan’s tweets, it is equally possible that the country will witness another round of bitter contempt proceedings.

Kamra’s tweets have come at a time when the court has stayed silent over a letter that Andhra Pradesh Chief Minister Jagan Mohan Reddy wrote to the chief justice of India on October 6, making serious allegations about Justice NV Ramana, who is next in line to be chief justice. When petitions seeking action against Reddy came up on Monday, Justice UU Lalit recused himself, citing the fact that he had represented one of the parties as a lawyer.

If the court does not find it necessary to rage against such extraordinary allegations by a sitting chief minister, it would be odd to see it go after a comedian for a few tweets.

The best response to people like Kamra would be for the court to protect the liberty and rights of everyone in the manner it protected Goswami’s.