Contempt cases: Prosecuting comedians and cartoonists is no laughing matter

When the Attorney General KK Venugopal gave his approval to prosecute the stand-up comedian Kunal Kamra and cartoonist Rachita Taneja, one was left wondering if he had considered all the ramifications of his decision.

Kamra’s tweets and some provocative photos, the Attorney General believed, were worthy of criminal contempt. Since such prosecution requires the Attorney General’s approval, it was his duty to sanction action. He did this same thing on Tuesday, allowing proceedings against Rachita Taneja, the creator of the Sanitary Panels webcomic.

The dignity of the court had to be upheld. The majesty and mystique of the law had to be preserved. These tweets threatened this whole grand structure. And so Kamra and Taneja needed to be taught a lesson. But although these seem like open and shut cases, it is not so straightforward.

Prosecuting a comedian and a cartoonist may in fact achieve the opposite of what is intended. The court may become the butt of many jokes. Courting a jester requires luck. Comedians are subversives. Their jokes are more deadly than a gun. They are philosophers in disguise. The Kamra and Taneja cases raise four issues that we, as a free society, need to think about.

The role of the comic

The first issue is the role of the comic in society. The French philosopher Henry Bergson in his seminal book Laughter: An Essay on the Meaning of the Comic, published in 1900, makes two important arguments that are of relevance to us.

One argues that laughter is necessary because in its absence society would become too inelastic. Laughter prevents the mind and society from becoming rigid, pompous, and arrogant. In India today, God only knows the desperate need for such laughter. This aspect of preventing by laughter the inelasticity of society is true for all societies, an insightful observation about the universal human condition. From this perspective, Kamra and Taneja are allies.

Laughter only occurs when there is a cultural alignment between the comic’s antics and her audience, when the statements and the gestures occupy a shared symbolic world. Only when there is a resonance will the meaning of the joke be understood. People will find it funny.

If Kamra and Taneja’s jokes about the Supreme Court are to produce any laughter then, according to this argument, there has to be an alignment. The audience shares their views and laugh at their exaggerations. If their cultural sensibilities are not so aligned then the joke will be harmless. It will not produce laughter and will do no damage. Is it this alignment that the legal authorities fear?

The second issue that needs consideration is that through this approval the court becomes the final arbiter of humour. By allowing criminal prosecution to proceed on tweets and cartoons, by seeing them not as humour but as an attack on the dignity of the court, the Attorney General has articulated a principle of jurisprudence that makes the court the final authority on what is funny, not with respect to what it says and does but with respect to what others say and do.

These are test cases of the court’s theory of humour. This looks like overreach and reminds one of the classic Abu Abraham cartoon where Charan Singh is holding a banner that says “smile” and Raj Narain, marching in protest with him, asks, “Don’t you think we’ve got a lovely censor of humour?”

One time when the court strayed into such a mine-field was during the 1995 Hindutva judgment when Justice Verma stated “...these words [Hindutva and Hinduism] are used in a speech to emphasise the way of life of the Indian people and the Indian cultural ethos.” That one judgment of Hinduism being a ‘way of life’ and not just a religion changed the dynamics of politics for decades.

It severely weakened the ability of the Representation of People Act 1951 to constrain the use of religion is politics. It destroyed the roots of the emerging plural and secular polity and set the foundations of a majoritarian democracy.

Today we are living through the consequences, if not the excess, of the court’s definition of religion. It would be even more damaging to the elasticity of our society if the court now tells us what constitutes an acceptable joke. That would be laughable. Satire has to be provocative if it is to work. Cartoons have to be iconoclastic.

Recall the brilliant cartoon (I think it was by Oliphant in Newsweek) which showed Indira Gandhi standing in front of a mirror, imperious and haughty like Queen Victoria, after she had declared the Emergency in 1975. In the cartoon she tells the Supreme Court judges who are depicted as tailors measuring her, “Make sure it fits my constitution.”

The cartoonist or the magazine were not prosecuted. Even in that dark period of the Emergency the learned judges did not hold the cartoonist for contempt.

The third issue that we need to think about is how does one prosecute a comedian without diminishing the aura of the court while still ensuring due process and a fair trial. Imagine the following exchange.

Public Prosecutor (PP): Sir, What is your profession?
Kunal Kamra (KK): I am a comedian.
PP: Please elaborate?
KK: I make people laugh by telling jokes about the Republic’s icons. I’m a prick. I prick balloons.
PP: Give us an example?
KK: Arnab Goswami (laughter in the court).
PP: Is that it? Please elaborate.
KK: Arnab Goswami (more laughter)
PP: You keep repeating his name but do not explain.
KK: Sir he is both the explanandum and explanans.
PP: How can he be both question and answer, joke and jester, highbrow and lowbrow, victim and villain?
KK: Sir that is my question too. The whole nation wants to know the answer.

The above excerpt, from an imagined court hearing, meets the legal conditions of due process and fair trial, but it also makes the court a theatre and the witness box a stand up comedian’s stage. Truly, prosecuting a comedian is no laughing matter.

‘Reasonable restrictions’

The fourth issue is more prosaic. By approving prosecution of the comedian and the cartoonist, the Attorney General placed Article 19 (2) of the Constitution, the “reasonable restrictions” section, read along-with the Contempt of Courts Act 1971, above 19 (1a), the Freedom of Expression article. This is a dangerous manoeuvre and could set us on the road to tyranny.

Many have expressed this fear so I will not go there but will instead focus on the conundrum that emerges. Although 19 (2) is supposed to limit the range of 19 (1), it assigns this task to the court to determine what constitutes a “reasonable restriction”.

Normally this is an uncomplicated exercise since the court is a neutral party to the conflict of articles. But if the court is itself the victim seeking recompense for violation of its dignity can it also be the impartial judge trying the case. Normally not. But this is only if one goes by the standard rules of a standard Republic.

These four issues need extensive public discussion. Will the cases be heard in open court or will it be held in Kamra? Perhaps the Attorney General will clarify.

Peter Ronald deSouza is the DD Kosambi Visiting Professor at Goa University. He has recently published, with Rukmini Bhaya Nair, Keywords for India, Bloomsbury, UK.