Contempt of court: Where does the line lie between criticising an institution and humiliating it?

When the foundational principles of India are discussed, many take pride in the diverse democratic freedoms on which the nation is based. Of course, few countries in the world can claim with certainty that its people are absolutely free – free to deliver speeches, take action, form associations, hold opinions, practice and disseminate them, among so much else. These foundational values have often involved a two-way flow between the pillars of the state and its citizens. In the balance are the questions of rights versus responsibilities, freedoms versus boundaries, honour versus contempt. Today, rather frequently, there is the question of the law versus citizens.

The freedoms promised by the Constitution come with restrictions – reasonably so. This is, after all, essential for efficient governance. However, it is the ambiguity of these restrictions that causes a peculiar dilemma. What differentiates a critique of the judiciary’s decisions from humiliating a foundational pillar? What constitutes an insult and not just a mere opinion? What makes disagreeing with the actions of the court an act of contempt towards it?

The past few months have witnessed several events that have prompted these questions to be debated afresh. Prominent figures such as lawyer Prashant Bhushan, actor Swara Bhaskar and now stand-up comedian Kunal Kamra have been accused of either insulting and demeaning the courts or the actions of the judges who preside over them. They have all been tested against the ambiguous yardstick of “contempt”.

However, is it possible for the opinions of an eminent lawyer, an outspoken actor and a popular comedian to be tested on the same metric? Do they follow the same parameter of social responsibility?

Looking for nuance

They were all critical of the judiciary or its actions in their own specific ways. There were differences in the reasons and manner in which their opinions were expressed.

One may consider the tweets for which Kamra has been criticised to be the result of frustration and disagreement with the actions of the courts. These are feelings many Indians have had recently with regard to landmark judgments, dissenting voices being stifled or with laws being draconian. The anger has been palpable. It isn’t surprising that some believe that the comedian’s tweets are just as valid as any other voice of discontent. They may even find his tweets funny.

What is the line between voicing objection to injustice versus insulting an institution and its sanctity? Does directly attacking the court really count as constructive criticism? Does calling the institution a joke or circulating an image of the Supreme Court building painted in the colour associated with the ruling party painting it a political colour serve a productive purpose?

Today, with innumerable activists, journalists and artists in jail awaiting trial, many of India’s constitutional freedoms are at stake. It is evident that voices need to be raised against this. However, is there actually a right way to do so? KK Venugopal, the attorney general of India, commented on this conundrum while disallowing contempt proceedings against actor Swara Bhaskar in August. “She did not say anything that would scandalise or tend to scandalise, or lower or tend to lower the authority of the Supreme Court”, he said about Bhaskar’s remarks about the Ayodhya judgment.

Dissent has always been vital to the development of its democracy. It has resulted in laws amended, verdicts reevaluated, and freedoms gained. Citizens who pose their disagreements in front of the judiciary do not diminish the institution – they are crucial to reforming it.

The letter of the law, its interpretation by the judiciary, and its implementation in the real world have always been three facets trying to catch up with each another. This is no different for the law of contempt. The clarity of law has always been a factor of time. Disagreeing with the decisions of the system is our right, our duty, and often a burden carried by critics and artists in society. But so is ensuring that the authority of the judiciary is not undermined in the process.

How do citizens disagree with the actions of the system without wrecking it? While we try to determine where the line lies, it is difficult to help but wonder if the escalating contempt of court proceedings not reflect an increasing contempt of criticism?

Oishika Neogi is a Research Fellow at Karwan-e-Mohabbat (Centre for Equity Studies), Delhi, and primarily focuses on issues of communal and identity politics.

Puneet Pathak is an Advocate at the Delhi High Court and Supreme Court, with a keen interest in criminal jurisprudence and constitutional rights.